4. Professor Susan McVie

PROFESSOR SUSAN McVIE (affirmed).

Questions From Counsel to the Inquiry

Lady Hallett: I hope we haven’t kept you waiting too long, Professor, I’m very sorry if we have.

The Witness: Not at all.

Mr Tariq: Good afternoon, Professor McVie.

There are a few preliminary matters I wanted to touch on. Can you please keep your voice up and speak into the microphone so that your evidence can be recorded by the stenographers; is that okay?

Professor Susan McVie: Yes, that’s fine.

Counsel Inquiry: If there is any question that I ask which is unclear, please say so and I will rephrase or repeat the question.

You’ve provided the Inquiry with a witness statement dated 12 December 2023. The statement is at INQ000369767. You have the statement on screen. Can you confirm if this is your statement?

Professor Susan McVie: Yes, it is.

Counsel Inquiry: Are the contents of this statement true to the best of your knowledge and belief?

Professor Susan McVie: Yes, they are.

Counsel Inquiry: I now wanted to turn to your professional background, Professor McVie. As I understand it, you’re a professor of quantitative criminology in the School of Law at the University of Edinburgh; is that correct?

Professor Susan McVie: That is correct.

Counsel Inquiry: You have held that position since 2010; is that correct?

Professor Susan McVie: Yes.

Lady Hallett: I know about criminology – there’s a surprise! – but quantitative criminology, what’s the difference?

Professor Susan McVie: Well, I mainly focus on large research projects involving quantitative data, large administrative datasets, surveys, that sort of thing.

Mr Tariq: And I anticipate coming to some of that data.

Lady Hallett: Okay. Sorry if I pre-empted your question, Mr Tariq.

Mr Tariq: Prior to this, you were, I believe, a research fellow and then senior research fellow in the criminology branch of the central research unit in what was at the time the Scottish Office and is now the Scottish Government between 1992 and 1997; is that correct?

Professor Susan McVie: That is correct.

Counsel Inquiry: Then you became a senior research fellow at the law school at Edinburgh University from 1998, before you ended up in the position that you currently hold; is that correct?

Professor Susan McVie: That is correct.

Counsel Inquiry: So you have had over 25 years of experience in academia; is that correct?

Professor Susan McVie: Yes.

Counsel Inquiry: And you have many publications in the field of criminology, including policing policy and practice and crime trends and patterns; is that correct?

Professor Susan McVie: Yes, that’s right.

Counsel Inquiry: You have been involved in many advisory committees for governments in Scotland, the wider UK and internationally, and this includes membership of two prior independent advisory groups on Scottish policing on the topic of stop and search powers and police use of biometric data; is that correct?

Professor Susan McVie: That is correct.

Counsel Inquiry: In the context of the pandemic response you became a member of the Independent Advisory Group on Police Use of Temporary Powers related to the Coronavirus Crisis in Scotland, from the inception of the group in April 2020; is that correct?

Professor Susan McVie: That is correct.

Counsel Inquiry: And you remained in the group until it was formally disbanded in May 2022; is that correct?

Professor Susan McVie: Yes.

Counsel Inquiry: We are going to come back to the work of the independent advisory group, but you’re also the principal investigator for a research project titled “Policing the Pandemic in Scotland”; is that correct?

Professor Susan McVie: Yes.

Counsel Inquiry: Are you able to tell me about this particular project?

Professor Susan McVie: Of course. The project arose out of the work that I’d been doing for the independent advisory group where I had been tasked with using police data to analyse patterns and trends and the characteristics of individuals who had been subject to enforcement. At the time there was a funding opportunity for rapid response projects that would be used to help inform policymakers and ministers about the impact of the pandemic, so I was fortunate enough to receive funding, and I conducted research with a small team of colleagues looking at a detailed analysis of the data that we had around police use of enforcement in Scotland.

We conducted interviews with a number of police officers, and we conducted interviews with a small number of members of the public who had been issued with fixed penalties, but that particular piece of research didn’t work very well because we didn’t have very many people willing to take part. But we’ve also done research that involves linking police data with health data, which has allowed us to look in a bit more detail at the underlying health vulnerabilities of those who were subject to enforcement.

Counsel Inquiry: I will come to that piece of specific data shortly. But I think you’ve said that in the context of your project you’ve interviewed members of the police; is that correct?

Professor Susan McVie: Yes.

Counsel Inquiry: Was that in relation to policing during of the pandemic?

Professor Susan McVie: Yes.

Counsel Inquiry: And this is in the context of Scotland; is that correct?

Professor Susan McVie: Yes.

Counsel Inquiry: Do you know roughly how many police officers you would have interviewed in the context of that project?

Professor Susan McVie: I think we interviewed around 30.

Counsel Inquiry: And you’re also – and we’ll come back to the project, but you’re also, in terms of your current roles, are you a consultant, to the National Police Chiefs’ Council, on the police use of enforcement in England and Wales?

Professor Susan McVie: I was given a consultancy to do work on producing a report for them on their data on police use of enforcement, yes.

Counsel Inquiry: Having set out your background, I wanted to turn to the independent advisory group. This is the Independent Advisory Group on Police Use of Temporary Powers related to the Coronavirus Crisis in Scotland.

This advisory group was established by Scottish Police Authority at the request of the Chief Constable of Police Scotland; is that correct?

Professor Susan McVie: Yes.

Counsel Inquiry: Are you able to explain to us between the Scottish Police Authority and Police Scotland?

Professor Susan McVie: So the Police Service of Scotland is the single unitary police force for the country. It was previously eight legacy forces which were merged together into one single force in 2013, and at that time the Scottish Police Authority was established as the scrutiny body to examine police, police activity, police use of its powers, and to monitor how policing was being operationalised and developed in Scotland.

Counsel Inquiry: So this independent group was effectively set up by this oversight or monitoring body, this being Scottish Police Authority; is that correct?

Professor Susan McVie: Yes. The Scottish Police Authority was the – provided the secretariat to the group and the independent advisory group reported back to the SPA, but Police Scotland were very core participants in the group.

Counsel Inquiry: In general terms, what was the remit of the group?

Professor Susan McVie: Our terms of reference were specifically to look at the police emergency powers that had been issued, so the powers of enforcement, and we were asked to examine the policing of the pandemic in the context of human rights, and also to ensure that enforcement had been administered in line with policing values and principles in Scotland.

Counsel Inquiry: Why was there a need for this group?

Professor Susan McVie: I believe that the Chief Constable – of course I mentioned that Police Scotland had only existed since 2013, and in its short lifetime there had been a number of fairly high profile inquiries into specific aspects of policing, including two advisory groups that you’ve already mentioned on stop and search and police use of biometrics and data. I think the Chief Constable was acutely aware that it was likely there would be scrutiny around police use of these new extraordinary powers, because the police were being asked to enforce activities that, under normal circumstances, would be completely law-abiding behaviours. So he was keen to ensure that there was an independent group that would provide scrutiny, public transparency, and enable the organisation itself to learn from any aspect of the policing work that was being undertaken.

Counsel Inquiry: So one of the purposes was to effectively learn in real time what was happening and what could be improved during the pandemic?

Professor Susan McVie: Yes.

Counsel Inquiry: Who were the other members of the group?

Professor Susan McVie: The group was chaired by John Scott KC, now Lord Scott, and he invited a range – or in fact it was David Crichton, who was the chief executive of the Scottish Police Authority at that time, invited a range of individuals to join the group so that it would have quite a broad membership. Do you want the exact list? Because I can refer to my notes for that, or I can try and remember them off the top of my head.

Counsel Inquiry: I don’t need a complete list –

Professor Susan McVie: Okay.

Counsel Inquiry: – it was just trying to get a range, of what range of experience or expertise was on the group.

Professor Susan McVie: Okay, so Police Scotland and the Scottish Police Authority I’ve already mentioned, there was a representative from public health, a representative from the Crown Office, the Crown Agent, sat on the group, the chief inspector of constabulary sat on the group, there was membership from a range of third sector organisations including the Glasgow Disability Alliance and Scottish Women’s Autism Network, and there were representatives from a number of human rights and equalities organisations, in addition to myself, and Mr Anwar was a member of that group.

Counsel Inquiry: How frequently did the group meet during the pandemic?

Professor Susan McVie: In the early days of the pandemic it met very frequently, at least twice a week, sometimes more frequently than that if there were specific issues to be discussed. Over time, we met less frequently, although at least once a week up until around the end of 2021, and then beyond that we met a bit less frequently until the group was formally disbanded in May 2022.

Counsel Inquiry: Did the group receive regular updates or input from senior police officers about some of the issues that they were facing during the pandemic?

Professor Susan McVie: Yes, it did. Deputy Chief Constable Will Kerr attended certainly regularly at the beginning of the pandemic, a bit less so later on, but he was a frequent attender, and Assistant Chief Constable Gary Ritchie was present at the vast majority of meetings. There was also a police presence. We quite often had senior representatives from different divisions as well, usually, at chief superintendent level, and we were also furnished with a secretariat called the OpTICAL Group, don’t ask me to repeat what OpTICAL stood for, because I’ve forgotten, but it was essentially a group that was providing us with data, information or any intelligence that we needed in terms of our work.

Counsel Inquiry: How did the group report its findings or recommendations to the police?

Professor Susan McVie: We – internally within the group we produced a number of reports. Different members of the – of the independent advisory group produced reports on specific themes. I, for example, produced quite a number of data reports. And the chair of the group, Lord Scott, was responsible for reporting back to the Scottish Police Authority.

So all of the work that we undertook and the detailed reports that were produced by Lord Scott and any other work we’d conducted, such as some of my data reports were formally presented to the Scottish Police Authority through their board meetings, and so they were discussed by the SPA and Police Scotland.

Counsel Inquiry: In your statement you explain that – I think you say you were the only academic on the group, which meant that you took on a role of amassing evidence and advising on research which could help to inform policing practice. You also say that you examined the police use of these new powers under the coronavirus regulations from an empirical perspective, and I think you say that there was a significant amount of data for you to use. What were the sources of data that you used in your research?

Professor Susan McVie: So do you mean the research project or the work of the independent advisory group?

Counsel Inquiry: The work of the independent advisory group.

Professor Susan McVie: In the independent advisory group, the – well, Police Scotland had – with a great degree of foresight, I might add – had decided to create a coronavirus intervention system to measure the extent of the encounters it was having with members of the public. In one of my previous groups I had been involved in advising around the collection of data and the publication of data on stop and search, so having good data and knowing what the data was telling them about their own activities I think was something that was quite high on their radar.

The coronavirus intervention system, as it was called, or CVI system allowed us to analyse the relative use of enforcement compared to other aspects of activity. I can speak to the four Es approach later if you wish. But the purpose was to understand to what extent were officers engaging with members of the public around the coronavirus regulations and how often were they resorting to use of enforcement.

I also had access to individual-level data about individuals who had been issued with a fixed penalty notice, so I had personal information about – not about their identities but about their age, their sex, their ethnicity, that sort of thing.

Counsel Inquiry: And all of that allowed you to pull together a series of reports that you produced as a member of the independent advisory group; is that correct?

Professor Susan McVie: Yes, that’s right.

Counsel Inquiry: I want to turn to the use of fixed penalty notices, because it’s a subject of, I think, a significant number of reports that you’ve produced, along with others, and I’m talking about the use of fixed penalty notices in the context of enforcing public health restrictions in Scotland.

Just to be clear, a fixed penalty notice is an on-the-spot fine, it’s not a criminal conviction, but they are recorded on police systems and may be disclosed via an enhanced disclosure application within a certain period of time; is that correct?

Professor Susan McVie: Yes.

Counsel Inquiry: So are you aware of the rationale for using fixed penalty notices as a means of enforcing public health restrictions in Scotland during the pandemic?

Professor Susan McVie: Well, I’m aware of the kind of – the general rationale for using fixed penalties at the level of why they were considered expedient and a good model. It’s less clear how they were – what the purpose of the fixed penalties was supposed to be. That’s never really been properly explained in terms of: if you were to have a metric of success, for example, it’s difficult to know what that metric would be. Is it the speed of the spread, is it the number of individuals who have the virus or who have sadly passed away?

Lady Hallett: You could say that about a lot of sentencing within the criminal justice system.

Professor Susan McVie: Indeed, indeed.

But in terms of the rationale, it was explained by Kit Malthouse MP, who was the UK Government minister for policing, it was explained as a kind of expedient model of using enforcement that would be familiar to the public.

It had a number of appealing aspects to it: it has an established level of legitimacy, the public know what an on-the-spot fixed penalty is, they understand it, they accept that these types of penalties exist.

As you mentioned, it means you don’t criminalise people because you don’t get a criminal record. It represents a relatively minimal administrative burden for both the individual who receives the fine and also for the police themselves, and it keeps people out of the criminal justice system, which was important in the context of the pandemic.

I think more people being kept out of the system was considered important, and actually it did because the data in Scotland specifically show that only 121 people, I think, were subject to criminal proceedings up to March 2022 under the coronavirus regulations and only five went to prison.

In relation to why were they used in Scotland specifically, that is because they were proposed by the UK Government and, at the beginning of the pandemic when there was a discussion about the extent and the nature of the regulations that would be put in place, there was a high level of commitment from Scottish Government to be part of a four nations approach; so they were proposed by the UK Government and they were accepted. There’s not really anything in any of the correspondence that I’ve seen to suggest there was ever any question as to their use.

Mr Tariq: I think you say in your statement that fixed penalty notices are most suitable for clearly defined objective offences that involve minimum discretion on the part of police officers.

Professor Susan McVie: Yes.

Counsel Inquiry: One example might be, for instance, speeding.

Professor Susan McVie: Yes.

Counsel Inquiry: It’s a binary issue of whether you were speeding or not.

You say that their use to enforce public health restrictions during the pandemic was a departure from this traditional model.

Can you explain why it was a departure from this traditional model?

Professor Susan McVie: It was a departure because, as you say, fines are typically used for well defined – either well defined, low level offences including speeding, or they might be used for antisocial behaviour offences, which can be broader but there’s a lot of case law, so there’s a good understanding about what is and isn’t an offence in relation to antisocial behaviour.

The issue in relation to the Covid fines was that the extent to which the fines might be used and the types of behaviour that they might be issued for was not necessarily always clearly defined, it changed a lot over the course of the pandemic as the regulations changed, and it was not always clear to either members of the public or police officers themselves what was a breach of the law, and what was merely a breach of guidance, for example.

So it was problematic from the point of view that neither the individual nor the police officer might have a clear view of whether an offence had actually been committed.

Counsel Inquiry: What would have been the alternatives to using fixed penalty notices as part of the pandemic response?

Professor Susan McVie: Well, I certainly wouldn’t have advocated for anything further into the criminal justice system. Formal warnings could have been used.

We’ve seen from the data, if you look at trends over time in the use of police fixed penalty notices, they’ve been going down for the last decade or so, both in Scotland and in England. I mean, they declined quite markedly by something in the region of 80% to 90%, whereas the use of formal warnings or community dispute resolutions – in England – have been increasing.

So it felt a bit strange for us when we were looking at the decision to introduce fixed penalties, that that was against the prevailing trend of summary justice measures in Scotland. But of course, because they were following the English model, then that would explain that, but they have been going down in England as well.

So a formal warning could have been used. That has been recommended in some literature in the US, that warnings are a better – a better approach because the vast majority of people only had contact with the police once, and so therefore a formal warning wouldn’t have resulted in some of the inequalities that are inherent in a financial penalty.

Counsel Inquiry: We will come to those inequalities.

In your research, have you seen any evidence as to the additional benefits of using sanctions in addition to guidance such as in terms of public compliance with the measures?

Professor Susan McVie: So we haven’t specifically researched that, and it would be quite difficult to research that in the Scottish context, because of the blurring of – between rules and guidance and because of the multiple changes to the rules over time, it’s actually quite hard to disentangle what would have made a difference.

We – the vast majority of countries did follow a sanctions based model, and I think that probably is one of the reasons that the UK Government decided to go down that particular route.

There are not very many countries that have focused only on guidance. South Korea is one, but it’s a very, very compliant population –

Counsel Inquiry: I think you give the example of, is it Sweden –

Professor Susan McVie: Yes.

Counsel Inquiry: – in one of your research that focused not on the sanctions model but on the guidance model?

Professor Susan McVie: That’s right, and Sweden is often used as a comparator to Scotland because we’re, you know, similar hemispheres, similar population. Sweden decided not to use sanctions, they didn’t introduce a lockdown, they introduced – they banned large gatherings, travel, and social – they recommended social distancing, they didn’t lock down the schools immediately, they didn’t introduce face masks immediately. They took a much more kind of what you might describe as lenient approach to managing the pandemic.

It wasn’t without controversy in Sweden, and many scientists were critical of the government for not introducing some kind of enforcement, and claimed that the lack of enforcement would lead to an increase in the death rate. However, a study that’s been conducted fairly recently has identified that the death rate in Sweden was relatively low compared to other comparator European countries including the UK, it’s almost half the rate in Sweden that it was here.

So there’s evidence – there’s no clear evidence to suggest that you need enforcement in order to make people comply. It was considered more of a –

Lady Hallett: Could I interrupt?

Professor Susan McVie: Yes.

Lady Hallett: You say comparator countries. I mean, I’ve been down this road before. Comparisons are very difficult to make.

Professor Susan McVie: Yes.

Lady Hallett: Sweden’s population, probably far more dispersed, don’t have as many major cities where people are densely … it’s really difficult to make a comparison between the two countries.

Professor Susan McVie: Yes. Absolutely, and actually the level of social support for individuals who may have struggled to comply in Sweden would have been higher.

So, I mean, I think what I would say is it’s very difficult to know within the UK context whether a guidance only model would have worked, but in the event it was never really considered.

Mr Tariq: In your report – and we’re going to come to the report shortly – I think you say it’s been very difficult to tease out the effect, if any, that enforcement had on preventing the spread of the virus or saving lives. You say that as a principal reason for introducing new policing powers during the pandemic, this does raise questions about testing the efficacy of an enforcement-based model to reduce the spread of the virus.

Does that still remain your view and, if so, can you explain your position?

Professor Susan McVie: Yeah, so the position is based on the original statement that was made by Priti Patel MP when the enforcement was introduced, and she made a statement regarding the use of enforcement, and she specifically said that the use of enforcement would help to reduce the spread of the disease, protect the NHS and save lives, which was the kind of mantra at that time. And it’s – we don’t really have the data that would be necessary to try and determine the cause and effect of the use of police enforcement on patterns of death, but I have mapped it, and what you see is that the – as the death rate increased, the number of fixed penalties increased, and then as the death rate reduced, the number of fixed penalties reduced.

So it tracks pretty closely up until about February 2021, at which point the beneficial effects of the vaccine kick in and the death rate drops down quite considerably but the rate of enforcement continued to be high for another couple of months.

There’s no evidence that more enforcement led to less – less deaths and less spread, and in fact from a logical point of view the police couldn’t know where the virus was or how it was spreading or where it was spreading any more than anyone else could.

I think the police role was really more about kind of, you know, trying to mitigate potential negative effects of people being in close proximity together rather than a specific impact on the death rate.

I mean, and, for example, if a police officer was faced with two individuals, one of whom had a reasonable excuse and wasn’t issued with a fixed penalty, and another didn’t have a reasonable excuse and was, the officer had no way of knowing which of those two individuals may, if any, have Covid.

So I think it was a kind of false impression to link that kind of public health impact with the enforcement itself.

Counsel Inquiry: I understand – I’m turning to a new topic – that one of your colleagues on the project sent a Freedom of Information request to the Scottish Government.

Professor Susan McVie: Yes.

Counsel Inquiry: And what your colleague was seeking to do was looking for correspondence, notes and briefings relating to the decision to include fixed penalty notices as a penalty for breaching coronavirus regulations.

I don’t intend to take you through each of the pieces of correspondence, you’ve produced them to the Inquiry, but in general terms what did the correspondence show in terms of the Scottish Government’s thinking around the use of fixed penalty notices?

Professor Susan McVie: So the correspondence showed that the Scottish Government were committed to a four nations approach. So when the UK Government provided their model of enforcement, the Scottish Government were predominantly interested in considering whether it could be operationalised within Scottish legislation and within the model that operates in Scotland. Information was shared with Police Scotland, with the Scottish Courts tribunal and with the Crown Office, so there was a view from the criminal justice organisations in Scotland as to how appropriate it was.

The main discussions in terms of questions to ministers were around the value of the fine, whether to stick with the existing antisocial behaviour legislation and model the fine around that, whether to retain the value of the fines for antisocial behaviour or adopt the proposed value from the UK Government, because the values were slightly different; and also there was an issue around the – whether fines should be issued to 16 or 17-year olds, because the UK Government had proposed that fines be issued to individuals aged 18 or over but the antisocial behaviour legislation in Scotland allowed for 16 and 17-year olds to receive fixed penalties.

Counsel Inquiry: I understand from what you say in your statement, and looking at some of the correspondence, that at the start of the pandemic there was a difference between Scotland and the rest of the UK in terms of – this is regulation 9 of the health protection regulations in Scotland, that allowed fixed penalty notices to be issued to people aged 16 or over, whereas the position across the rest of the UK was that fixed penalty notices could only be issued to people 18 years or over.

In those documents that seems to be a conscious decision, a deliberate decision that’s made by the Scottish Government to use the existing model of the antisocial behaviour so that these penalties can be issued to 16-year olds. Is that correct?

Professor Susan McVie: Yes. I think the decision to – the decision to model the Covid fixed penalty on the existing legislation was partly a practical one, the police were used to issuing antisocial behaviour fines so therefore using the same kind of broad model made sense. If they were in a position where they were having to issue some fines to 16, 17-year olds and not others, I think there was a feeling from Police Scotland that, you know, that would cause some confusion. And also I think it was expressed in that particular document that Police Scotland were concerned that younger people may pose a problem in terms of being in large groups and potentially spreading the disease. So in some ways I think Police Scotland had quite a big influence on the decision to maintain that – to maintain 16, 17-year olds within the legislation as opposed to the English legislation.

Counsel Inquiry: And the Inquiry understands that the Coronavirus (Scotland) (No.2) Act then amended regulation 9 to raise the minimum age to 16, and that Act came into effect on 27 May 2020. So within a couple of months of initially deciding to go with the age of 16 years, this was increased to 18 years; and I think in that time there had been calls from the UN to ensure children’s rights were being safeguarded during the pandemic in Scotland, and it was thought that this change would bring in line with the UN Convention on the Rights of the Child.

Professor Susan McVie: Yes.

Counsel Inquiry: Was that the key driver, the concern from organisations such as the UN which led to the increase of age from 16 to 18?

Professor Susan McVie: I think there certainly was messaging from the UN, but actually a primary driver in Scotland, and I should’ve ment – they’ll be upset with me for not mentioning them – the Scottish Children’s Commissioner, or the Commissioner for Children and Young People, was quite vocal in the discussion around 16 and 17-year olds.

It was: having 16, 17-year olds in the legislation felt out of kilter with the prevailing direction of sanctions for children and young people. We’ve seen a big change in the way that we deal with children and young people who are involved in offending in Scotland, we have a new whole-systems approach, we have a new Bill that’s been trying to keep 16, 17-year olds out of the criminal justice system, and the Scottish Government is heavily committed to the UN Convention on the Rights of the Child.

So when the legislation was passed and when our advisory group was established, the Scottish Children’s Commissioner was quite vocal about the fact that this felt out of kilter with the way that we usually did things.

And I think, looking at the freedom of information documentation that you mentioned earlier, I’m struck by the fact that no equalities impact assessment was conducted by the Scottish Government on that specific issue.

I think Joe Griffin, who’s already given evidence to the Inquiry, has spoken to the fact that there wasn’t time to do proper equalities impacts assessments of the legislation as it came in at the start of the pandemic, and that’s certainly true.

I think in my evidence I produced two documents of equalities impact assessment that haven’t looked specifically at enforcement but, as far as I’m aware, enforcement hasn’t been covered in any subsequent equalities impact assessments. If it had been at the time, I think the 16, 17-year old point would have been picked up and that wouldn’t have been allowed to go through.

Counsel Inquiry: I think you say in your statement that there’s data which shows that there was 256 fixed penalty notices that were issued to people under the age of 18 prior to the introduction, or the amendment to regulation 9.

Professor Susan McVie: Yes.

Counsel Inquiry: I think you also say that data also shows that there was a further 220 fixed penalty notices issued to people under the age of 18 after the amended regulation 9. Why would that be?

Professor Susan McVie: I don’t know for sure, but I think it’s probably – I mentioned earlier – the confusion between having one type of fixed penalty notice that can be issued to 16 and 17-year olds and one that can’t, so it may well be that police officers were unaware or had forgotten that the change in the law had been made; if they had already been used to issuing fixed penalty notices to 16, 17-year olds, it may just have been an oversight during operational practice.

I think the other issue is that it’s not always clear at the time when an officer is dealing with a person actually what their age is, so it could well be that it was just that they didn’t – they weren’t aware at the time they were 16 or 17.

I think it’s highly likely – well, I think it’s almost certain that any fixed penalty that was issued to a 16, 17-year old after the legislation had been changed would have been rescinded.

Counsel Inquiry: I wanted to ask you about equality impact assessments.

In your statement you say that:

“There is no available evidence to suggest that the Scottish … law-makers gave consideration to equality issues in respect of the decision to use fixed penalties. In Scotland, Equality Impact Assessments published for the Coronavirus (Scotland) Bill … and the Health Protection (Coronavirus) … Regulations 2020 … made no reference to the new policing powers or police use of enforcement. Nor can we find evidence that retrospective Equality Impact Assessments considered this issue.”

Had there been equality impact assessments at the time, what would those – what sorts of issues would those have identified?

Professor Susan McVie: I think I’ve mentioned the 16, 17-year old, they would almost certainly have picked that up.

The other issue I would have expected them to have picked up is that the – in a quirk of the coronavirus regulations they introduced an incremental fining system. Now, I mentioned earlier that Mr Malthouse had stated that, you know, introducing Covid fixed penalties was, you know, a known science, that people were familiar with them, that they understood them, that they were easily accepted, and he gave examples of things like littering and dog fouling.

What he didn’t mention was that, under the new incremental fining system issued through the regulations, that if an individual committed a second offence under the coronavirus regulations, their fine would double, if they committed a third it would double again, and so on up to a maximum of five offences which would result in a fine of £960.

So that is not the kind of light touch, kind of low-level fixed penalty that the public are used to in Scotland or the wider UK, so I would have expected an impact assessment to have picked up on that.

You have to also bear in mind at this point there was very little parliamentary scrutiny of regulations, things were happening so quickly. What we did have in Scotland was the Lord Advocate intervened. So when it was observed that there could be a potential for police officers – and remember a fixed penalty is an on-the-spot fine issued, you know, in terms of the discretion of the officer, officers dealing with new regulations, very unfamiliar with them, sometimes making, you know, good faith mistakes. If officers were issuing fines of up to £960, that would have been out of alignment with the level of fine that could be issued with a Procurator Fiscal in Scotland, which at that time was a maximum fine of £300.

So the Lord Advocate stipulate – issued guidance to say that police officers in Scotland could only issue a fine of up to £480, so that’s a maximum four fixed penalty notices, and at the same time legislation went through – I think on 7 April 2020 – which increased the size of a fine that the Procurator Fiscal could issue as a fiscal fine from £300 to £500, so that brought the police and the Procurator Fiscal powers in terms of their use of fixed penalties into alignment at that point.

Counsel Inquiry: I now want to turn to the data that we’ve discussed kind of in a very high level, and I want to look at the report that you produced. This is the report from the Scottish Centre for Administrative Data Research titled “Police Use of Covid-19 Fixed Penalty Notices …”, and it’s at INQ000369770.

Is this a report that you produced for the independent advisory group?

Professor Susan McVie: This one, August 2022, so the independent advisory group by this time had been disbanded in May of that year, so – but I continued to work on the data that I had been using as part of the independent advisory group, it was shared with members of the advisory group and we did have a meeting with some of those members to discuss it.

Counsel Inquiry: We can see, perhaps at the top left of the top page, it says “Policing the pandemic in Scotland”, so this is with your follow-up project after the work of the independent advisory group?

Professor Susan McVie: Yes, that’s right.

Counsel Inquiry: And I think this report analyses over 20,000 fixed penalty notices that were issued by the police to enforce non-compliance with public health restrictions introduced during the pandemic, and I think the dataset is between March 2020 and May 2021; is that correct?

Professor Susan McVie: That’s right, yes.

Counsel Inquiry: Can we look at page 16, figure 3, please. Thank you. You will see that this breaks down the number of police interventions in Scotland between May 2020 and May 2021 by reference to the four Es. Are you able to explain the different stages of escalation? First of all, are you able to explain the four Es strategy and then the different stages of escalation?

Professor Susan McVie: Yes, of course.

The four Es strategy was introduced very early in the pandemic, in kind of late March, early April 2020, by the College of Policing and the National Police Chiefs’ Council, and it was intended as an easy to remember strategy that would minimise the potential – any potential negative consequences or impact of the introduction of the new police powers. I think there was a genuine desire by policing organisations to ensure that any impact that policing might have in the context of the pandemic would be as minimal as possible on the basis that there was an understanding there might be wider inequalities.

So the four Es strategy requested that if an officer was to encounter someone that may be breaching the coronavirus regulations, they were to engage with them first and talk to them, find out a little bit about what was happening. If it was clear that the individual was not following the regulations, the officer was to explain – wasn’t aware of what the regulations were, then they were to explain what the regulation was to the individual. If the individual was potentially doing something that was in breach of the regulations, the police were to encourage them to stop doing that and make sure they didn’t do that again. And only in the case of individuals who were flagrantly or deliberately or persistently breaking the regulations were they to move to enforcement.

So that was the four Es strategy, and the data that you can see there was extracted from the coronavirus intervention system that I mentioned earlier that was constructed by Police Scotland as a way of measuring encounters, and it takes every encounter that was entered on to the system by police officers and it broadly maps on to those four Es. They use slightly different words in the system, but informing people was essentially the kind of engagement and explanation, and then instructing and removing them was essentially the kind of encouragement part.

Counsel Inquiry: Can you talk us through what the data shows in terms of the escalation to enforcement?

Professor Susan McVie: Yes.

So the data essentially shows that in the vast majority of cases where the police had encountered someone under the potential for a breach of the coronavirus – in the vast majority of cases they relied only on the first three Es, so they didn’t move to any kind of formal intervention. In around 11.6% of cases they reported issuing a fixed penalty notice, and in 0.7% of encounters they noted that an arrest had taken place, so that’s around just over 12% of all recorded encounters involved enforcement. So that led us to be confident that the police in Scotland were following the four Es strategy. It’s not possible to compare it with any other police force because no one else measured it, but I think it was a really valuable tool that was introduced by Police Scotland.

Counsel Inquiry: So it’s one in eight –

Professor Susan McVie: Yes.

Counsel Inquiry: – roughly, interventions or encounters that led to enforcement?

Professor Susan McVie: Yes, that’s one in eight recorded encounters.

Counsel Inquiry: Yes.

Professor Susan McVie: I suspect there was probably a lot of other informal stuff that was never really recorded, so I would say that that was a conservative estimate.

Counsel Inquiry: I think what this shows is even where there was enforcement, the vast majority of incidents only involved the issue of a fixed penalty notice?

Professor Susan McVie: That’s correct.

Counsel Inquiry: And only a very small minority of cases required escalation to arrest?

Professor Susan McVie: Yes.

Counsel Inquiry: Can we then turn to page 25 and figure 11. I’m looking at figure 11 at the bottom of the page, now it’s on the screen. Are you able to talk us through your findings as shown in this figure?

Professor Susan McVie: Yes.

So this was an analysis of the fixed penalty notices that had been issued, and we were interested to see what the ethnic profile of individuals who had been fined was. The vast – on the left, you can see the total absolute number of fixed penalty notices that were issued to individuals from different ethnic backgrounds, and you can see that by far the vast majority were issued to people from a white background, which includes white minorities including people from Gypsy, Traveller backgrounds. It’s one of the main ones in Scotland. And that – at a kind of high level, that maps on to the Scottish population, which is predominantly white.

However, in order to determine whether there might be any potential disproportionality, you have to take the population figures and then calculate a rate per head of population for enforcement. So that’s what you can see on the right, it’s the estimate – we’ve called it the estimated rate because we used the most up-to-date population data but there’s always some level of uncertainty around population numbers that can change. So the estimated rate per 10,000 individuals within each of these ethnic categories. So you can see that actually when you look at population size that individuals from black African or Caribbean backgrounds had the highest rate overall, and people from white backgrounds had the lowest rate per head of population.

Counsel Inquiry: I think overall does this show that people from ethnic minority backgrounds were 1.4 times more likely to receive a fixed penalty notice than those from a white group during the pandemic?

Professor Susan McVie: That was correct yes.

Counsel Inquiry: And I think that figure rises to 1.8 times more likely for somebody from an African black or Caribbean background by reference to white popul –

Professor Susan McVie: Yes, that’s right.

Counsel Inquiry: Are these differences explained by differences in, for instance, compliance rates with public health restrictions amongst different ethnic groups, or do these figures show that there was disproportionate policing of people from black and minority ethnic backgrounds?

Professor Susan McVie: We’ve been very careful in the reports that we’ve published to say that the analysis that we’ve done cannot be used to determine whether there was disproportionate or bias in actual policing. So, in order to know whether there was bias in policing, you would need to know the level of compliance within each of these groups, you would need to know how many of those individuals had been encountered by the police, and then you’d need to know how many of them they fined. We simply don’t have that information.

So it’s impossible to say that there was any disproportionality in terms of the way in which the police were approaching.

Lady Hallett: Can you just pause there, please?

Professor Susan McVie: Yes.

Lady Hallett: Mr Tariq, this is a really important topic, I’m just not sure it’s one within my terms of reference.

Mr Tariq: Yes, I was going to move on, my Lady. I’m perhaps just following up on an interesting topic that’s –

Lady Hallett: It is extremely important and obviously an interesting topic, and I do understand that the professor can give us a great deal of help. As I say, I just think we’re straying.

Mr Tariq: Yes.

I wanted to move to some of the policing challenges –

Professor Susan McVie: Yes.

Counsel Inquiry: – during the pandemic, and these stem from Scottish Government regulations.

Perhaps if it’s possible to take the report off screen.

In your statement I think you state that in research interviews conducted with frontline police officers they identified with difficulties with keeping up with frequent changes in the regulations that were being enacted by the Scottish Government, and some of these were made very much at the last minute.

Are you able to provide specific examples of difficulties that this presented in terms of policing the pandemic?

Professor Susan McVie: Yes, indeed, and I think it is important to say that this wasn’t unique to Scotland. In fact Tom Hickman has produced a lovely paper called “Abracadabra Law-Making …” where he describes producing regulations like pulling rabbits out of a magician’s hat. So it wasn’t unique to Scotland.

It caused problems for policing mostly at an operational level. So when we were working with the IAG, it was a frustration of senior officers that the speed and frequency of the regulations was coming through without – I mean, it wasn’t that the Police Scotland weren’t consulted at all through the process, but things were happening so quickly and quite often they weren’t consulted until quite late on in the process that their – the level of input that they could have to that was relatively small.

Lady Hallett: I heard in a module in London that sometimes they got a matter of hours’ notice before the regulations changed. Was that the same here?

Professor Susan McVie: There was at least one occasion I can remember that the regulations had been enacted before the police even saw them, so … and actually this is –

Lady Hallett: No notice?

Professor Susan McVie: No notice at all, and there’s one really great example in the justice – Holyrood Justice Sub-Committee meeting where the Chief Constable is being interviewed by the convener of the justice committee and happens, during the meeting, to have something passed to them to say that there’s new legislation coming in around introducing new police powers of entry so that the police can go into properties where parties are happening. And the convener puts this to the Chief Constable in terms of the level of, you know, the detail and the Chief Constable, I think in quite uncomfortable terms, states that, although he’s aware of it and has seen drafts, he wasn’t – he didn’t know what was in the final version.

So, yes, it was a frustration of senior officers that they didn’t always have sight of things.

From an operational point of view, it causes problems when you’ve got a police force with over 17,000 officers and you have to roll out training and instruction to frontline officers who are then going to go out and implement these new regulations.

Now, I have to say that certainly in Scotland, Police Scotland took a very pragmatic approach to changes in regulations and they never wavered from emphasising the four Es approach and trying to minimise potential impact of any new regulations. But when we interviewed frontline police officers, they talked about, you know, the difficulties of going on annual leave for two days and coming back to a completely new set of regulations and they didn’t understand what they were doing. We talked to supervisory officers who said their staff were coming to them for advice on specific incidents and issues, and they didn’t know how to advise them. Frontline officers also talked about trying to find – they were being – information was being dripped down internally within the organisation, although it wasn’t anything like the kind of training that officers would normally receive. Normally they’d have months, if not years of preparation, and they didn’t have anything like that. So they were going to Scottish Government websites to try and find out the information, but the Scottish Government website itself was blurring the difference between what was regulation and what was guidelines, so that didn’t always help either.

So, yeah, there were a lot of operational difficulties.

Mr Tariq: I think you say in your statement, and then I think you’ve touched upon this earlier in your evidence as well, that the distinction between law and guidance –

Professor Susan McVie: Yes.

Counsel Inquiry: – was often not clear, not just to decision-makers or the media but also police officers. Is that based on the information you were given in research interviews and indeed your work on the independent advisory group?

Professor Susan McVie: Yes. What police officers said was that during the first lockdown, when it was really – when the instruction was really clear, stay at home, then it was easy to operationalise the regulations. I mean, so that’s not to say there weren’t some issues, particularly at the very beginning before the four Es strategy really kicked in, but it was clear to the public what they were supposed to do, it was clear to the police what they were enforcing.

As time went on and things started to be – you know, ease up and new regulations are brought in that provided for different circumstances or an increasing range of reasonable excuses or, you know, when they were introducing things like the – when they were talking about the – there’s a good example I want to give you of the First Minister talking about the exercising once a day.

Now, there was a lot of discussion about exercising once a day, not just in – by Scottish ministers. It was only ever a law in Wales, it was never a law here, it was guidance. And when Nicola Sturgeon on the – if I get my dates – in May 2020, on 11 May she said at one of her daily briefings:

“The only change we’ve made here in Scotland is to the guidance on exercise. As of today we have removed a once a day limit on exercise. It is one very minor change to the existing rules.”

So in her own statement she conflates guidance and rules. And of course, taking their cue from her statement, it was widely reported in the media that the rule of one exercise a day – you know, exercising once a day – had been relaxed.

Now, it might not sound like a very big thing, but to those individuals who were trying to follow the rules to the letter and who, you know, who really stuck to things and were careful, seeing someone going out for a walk twice a day and thinking that was a rule and not guidance would have caused some problems within communities. We know that, you know, a lot of the calls that came in to Police Scotland around people breaching the regulations were neighbours looking over the fence or the garden wall and clipeing on their other neighbours.

So, you know, it did make a difference that there should be clarity between what is rule and what is guidance.

Counsel Inquiry: Operationally, this would’ve – if the First Minister is using language that blurs between guidance and rules, that operationally must present challenges to the police when they’re trying to work out where they can enforce and where they can’t?

Professor Susan McVie: Yes. We didn’t – we weren’t able to get access to data on the reasons that fixed penalty notices were rescinded. So rescinded is when the police withdraw the ticket and it’s not pursued. But we are aware from discussions with – through the independent advisory group that a lot of the reasons for rescinding were where an officer had in good faith issued a fixed penalty notice for something that was guidance and not rule.

Counsel Inquiry: In your statement you say that during meetings of the independent advisory group there were discussions with Police Scotland about new regulations that were considered very difficult to enforce, and you provide the example of regulations around quarantine restrictions on return from overseas travel as being something that was difficult operationally for the police to enforce. Can you explain what you were told about this issue in the independent advisory group?

Professor Susan McVie: Yes.

So in the independent advisory group, one of the reports that we would receive on a regular basis was an update on some of the issues that were facing Police Scotland. They would quite often tell us about difficult cases, and they gave us a running report on issues relating to certain types of fixed penalty, one being travel and another being quarantine. And the difficulty that they faced with the quarantine regulations was that – so the quarantine regulations were really managed by Public Health Scotland, and if they could be dealt with satisfactorily through Public Health Scotland then there was no recourse to the police. I think it was really only in cases where Public Health Scotland had tried to contact someone and hadn’t been able to do that, that it was passed on to the police. Now, the police in these meetings told us that quite often the information that they were passed was incorrect, you know, phone numbers that didn’t work, addresses that either didn’t exist or the person wasn’t there. But actually a bigger problem was that by the time Public Health Scotland passed the data on to the police to deal with, the period of the quarantine had elapsed, so there was really no point in the police taking up valuable resource to follow it up in any case.

Counsel Inquiry: You also say in your statement that travel restrictions, you’ll recall, the Scottish Government introduced in late December 2020 which banned travel between Scotland and England; that was another example I think you provide of where it wasn’t practical to enforce. Was that an issue that arose in the independent advisory group?

Professor Susan McVie: Yes, and it was discussed both in the independent advisory group and John Scott and myself presented to the Holyrood subcommittee on justice and it was discussed there too.

Essentially this was a ban on travel, cross-border travel between Scotland and England that was introduced on Boxing Day in 2020, and the specific concern was about the spread of a new variant in England which hadn’t really reached Scotland at that point, and I think that the idea was we have a travel ban so that people don’t bring this nasty new variant here. Although they also made changes to the local levels at that point, so it was actually quite a complex regulatory shift.

So the First Minister announced this at the daily briefing on 19 December 2020 and stated that this travel ban would come in and they would be “asking Police Scotland and transport operators to consider how the enforcement of this can be strengthened in the period ahead”. So the insinuation is there’s going to be pretty heavy enforcement of people crossing the border.

Now, this is another example of where there’s a tension between what the government wants to articulate through its messaging, and I can fully understand the intention in terms of trying to make people understand the seriousness of what this might do but tension between that and the practicalities of policing.

So almost immediately Alan Speirs, Assistant Chief Constable at the time, released a statement from Police Scotland to say that they would be continuing to focus on the four Es, that they were encouraging people to take personal responsibility, and they would not be routinely stopping vehicles or setting up roadblocks.

On the day that the law came in, the Chief Constable reiterated that again, saying that the restrictions were preventative, and they did double the police presence on the border but they made it very clear they would not be proactively stopping vehicles. And when John Scott presented to the Holyrood justice subcommittee, he described it as a restriction that was simply impossible to enforce, it’s an example of something that’s unworkable, and he gave an example of roadblocks that had been used set up in Melbourne in Australia which had caused absolute chaos and had not had the desired effect.

So, yeah, so that was another example of something where a bit more communication between government and the police might have led to more harmonious press releases.

Counsel Inquiry: I now just want to more on to lessons learnt. I’m nearing the end.

Lady Hallett: Just before we do, before you go to lessons learned, Mr Tariq, can I ask this.

I heard in England about the drafting of some of these regulations and it was – the drafting went to the Department of Health in England, whereas normally it would be the Home Office responsible for drafting criminal justice regulations, and I suspect partly as a result I had a look at some of the offences. I’ve got a background in criminal law, so … and they were nonsensical. I mean, they wouldn’t have made sense to, I suspect, a criminal law professor, let alone the poor police officer or alleged offender.

What were the regulations like here? Were they better drafted?

Professor Susan McVie: Well, I’ve not compared – I’ve not, you know, done a big study of –

Lady Hallett: Right, (inaudible), don’t –

Professor Susan McVie: – but there are examples of some of the regulations where it was absolute gobbledegook.

Lady Hallett: That’s what –

Professor Susan McVie: There’s one classic example of an explanation in a policy memorandum which is trying to explain – it’s the rule of six, and it’s trying to explain how many adults can meet and how many children there can be and what the ages of the children can be, and it’s about two or three sentences long and it is absolutely impossible to fathom; and, again, this is – kind of speaks to another issue of very fastly drafted legislation.

I can see the intention was to try and be clear about, you know, “In this circumstance, based on our legislation, you can have these people”, but it was impossible for people to understand, and you can – you can see why police officers and members of the public would have been very confused about whether they were committing an offence or not.

Lady Hallett: And who did the drafting here?

Professor Susan McVie: That I do not know because I wasn’t involved –

Lady Hallett: Maybe we can find out some other way.

Professor Susan McVie: Yes.

Lady Hallett: Thank you.

Mr Tariq: It’s an area we can explore with subsequent witnesses, my Lady.

I now wanted to just turn on to lessons learned.

In a future pandemic situation, is there a more proportionate response than using sanctions to enforce public health restrictions, in your opinion?

Professor Susan McVie: Well, if you want to include a sanction, the only level down from a fixed penalty notice – which is reasonably proportionate, if you keep them at a low level that the public expect. You know, there’s an inherent inequality in financial penalties. A fine of £60, which is the minimum, a fine of £60 for a government minister might be a small amount of pocket change, but that might be quite a large amount of money for someone who’s experiencing financial hardship. And remember that the person that commits the offence doesn’t need to pay the fines, so there are individuals who did have fines paid for by other people, including a number of well-heeled students.

So that inequality is offset by the fact that these sorts of on-the-spot fines are relatively pretty small, but when you start to ratchet up the fines to hundreds of pounds, that’s not a small fine any more and that inherent inequality is quite large.

So – sorry, I’ve forgotten the original question, but …

Lady Hallett: What’s the proportionate response?

Professor Susan McVie: I mean, if you kept the fines low level, you continued with the 12 – the 12 Es? I’m sure we could find a few more – the four Es approach and you improved lots of other things like more consistent, clear legislation that was distinct from guidance, and focused on supporting people to follow the rules rather than punishing them for not following the rules, then if you were to move away from a fixed penalty then a formal warning would be the next level down.

I think you have to remember that laws are there for the majority – for the most part to deter the law-abiding majority, and in the context of the pandemic most people were the law-abiding majority. You know, we’ve talked about enforcement today, but in Scotland less than 0.5% of the population were subject to enforcement. So in the grand scheme of other inequalities and impacts the pandemic had, enforcement might seem quite a small thing, but it did impact on thousands of people and it impacted disproportionately on people from more deprived backgrounds and individuals from certain social groups.

So I think it’s always important to try and minimise the effect of any sanctions in the context of a public health emergency, where there are lots of other inequalities that are going to be impacting on these individuals. And very often the inequalities intersect, so the people who were subject to repeat fining, for example, were highly likely to be people who were also impacted in terms of health and economics, potentially education as well.

Mr Tariq: My Lady, there’s no further questions from me, and I understand there’s no live Rule 10s.

Lady Hallett: Thank you very much indeed, Professor, I’m very grateful. As you say, there are many people where the impact was dreadful, but one of the lessons to be learned is that when you impose what are essentially criminal sanctions, even if you don’t end up with a criminal record, you’ve got to make sure you get it clear and right. And maybe if we’d been better prepared, all of us, before, we might have had some draft bills or offences that we could have implemented, who knows. But thank you for your help.

The Witness: You’re very welcome. Thank you.

(The witness withdrew)

Lady Hallett: I think it’s 10 o’clock tomorrow. For those who were interested in seeing the evidence of Alister Jack MP, for reasons that are not his fault, they are not the Inquiry’s fault, I’m afraid we can’t call him tomorrow, I understand, so we’ll start with Elizabeth Lloyd. We hope to call Mr Jack next week.

Mr Tariq: Thank you.

(4.22 pm)

(The hearing adjourned until 10 am on Thursday, 25 January 2024)