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UK: Joint Committee on Human Rights enquiry into policing and protest, by Max Rowlands

01 October 2008

As the right to protest in the UK is steadily eroded, civil libertarians, trade unionists and journalists put their concerns to parliament

Between June and December 2008, the UK Joint Committee on Human Rights looked into human rights issues arising from policing and protest. The Committee, comprised of twelve members appointed from both the House of Commons and the House of Lords, heard oral evidence first from human rights organisations, campaigning groups and trades union representatives, then from members of the police force representing the Association of Chief Police Officers (ACPO), the Metropolitan Police and the Police Federation, and finally from the government. This article outlines some of the key issues raised in these evidence sessions.

Pre-emptive policing

Giving evidence in the same session, James Welch, Legal Director of Liberty, and Eric Metcalfe, Human Rights Policy Director of JUSTICE, both argued that the police should be reluctant to take pre-emptive action against demonstrators even if they suspect some intend to break the law. Metcalfe said that:

the mere risk that violence may occur in a protest is not, in our view, certainly, sufficient grounds to abridge the right to protest completely.

Further:

we are concerned that there is a tendency towards prior restraint [by the police]…the proper approach should be if someone says something unlawful, for the action to follow subsequently, rather than to prevent the speech being made in the first place.

Welch said that the majority of legal proceedings brought against police by demonstrators originate from ill-advised pre-emptive action. He cited, as examples, the cases of Lois Austin and Geoffrey Saxby who were detained, along with several thousand other people, in Oxford Circus for seven hours during the 2001 May Day demonstration in central London, and that of Jane Laporte, who was part of a group of anti-war protestors held on their coaches for two and a half hours to prevent them reaching an RAF base in Gloucestershire. Both are:

clearly cases where the police anticipated trouble… they acted precipitately and wrongly in doing what they did.

Concern was also expressed over the wide use of section 5 of the Public Order Act 1986 under which individuals can be arrested for causing “harassment alarm or distress.” For example, in 2008 a 15-year-old was given a court summons for holding a sign which said that scientology is a cult, and in 2006 a free speech protestor was arrested for wearing a t-shirt bearing a cartoon of the prophet Muhammad. In both cases police intervention was based on the presumption that there might be a breach of public order.

In a later evidence session, Phil McLeish, a lawyer representing Climate Camp, voiced similar concerns over the heavy-handed policing of demonstrations. He said that police are increasingly preoccupied with quashing any sign of trouble before it materialises, and often over-police marches with officers including riot police - in the past they would not be deployed unless it was absolutely necessary in order to avoid provoking demonstrators. In 2008, peaceful protests at Climate Camp were met with three rows of riot police fully equipped with truncheons, shields and helmets:

It is either psychological, just trying to intimidate people, or it is simply that they have got the stuff, they have to pretend to use it, otherwise the budget is going to get cut [the cost of policing Climate Camp was £5.9 million, roughly £4,000 per person]…this kind of micro-management and total over-control of protests is a death of (sic) a thousand cuts.

The committee conveyed these concerns to the Metropolitan Police Acting Assistant Commissioner Chris Allison, ACPO Public Order Lead Sue Sim and Police Federation member Neil Hickey in November 2008. The default police line was that if a possibility of illegal acts being committed exists, pre-emptive action is justified because:

if you know that a crime is about to take place and you can do something about it, then you should do it (Allison).

The committee pointed out that they were not disputing the existence of circumstances in which the police would be fully justified in intervening (Welch, Metcalfe and others who gave evidence also acknowledged this). Allison was asked specifically whether preventative action taken through the employment of section 5 powers represented an overuse of the law. He maintained that it has been appropriately employed. In the case of the protestor arrested for wearing a t-shirt of the prophet Muhammad, he believed the arrest to be justified because the police waited until they received complaints before taking action. He also emphasised that individuals can seek redress through the courts if they feel they have been mistreated.

Allison also claimed that police are making determined efforts to reduce the amount of resources used at protest events and stressed that the manner in which they police demonstrations directly reflects the nature of intelligence information received. Hickey added that “risk assessment is a live document” and, as such, “if intelligence during the course of an operation suggested that there was likely to be violence we would expect preventative action to be available to officers and if that includes removing articles that are likely to cause danger or harm to people then we would totally support that action.”

The committee queried whether the deployment of police in riot gear serves to raise tensions and create a “self-fulfilling prophesy” that increases the likelihood of conflict. They also cited police practice in Northern Ireland where, despite often facing a higher risk assessment, officers are always deployed in normal uniform in an attempt to de-escalate. Allison insisted that riot police are never used when the risk assessment is low and that holding them in reserve, on occasions where their deployment is deemed necessary, would represent a waste of resources. Fundamentally, police seem to trust their intelligence unreservedly and to act pre-emptively upon it:

If the intelligence is there that says people within this particular group are such that they are likely to attack us…our view is that we should not wait to get one or two officers injured as a result, but what we should do is right at the front put officers out in protective equipment.

Giving evidence in December 2008, Vernon Coaker MP, Minister for Policing, Crime and Security, was more cautious. He said:

the police certainly have to be aware of the impact of not only their style of dress but also the kit that they wear and the way they treat people

and that:

if you are not careful it [deploying police in riot gear] does become a self-fulfilling prophecy.

It is therefore essential that those in command make well informed decisions regarding the appropriateness of police dress on a case by case basis. Coaker refuted suggestions that police can be hasty to use protective equipment because they feel they need to be seen making use of it.

The committee asked whether, in the case of Climate Camp, police should have combated the perceived minority of potential trouble makers with the more costly option of increased perimeter policing instead of inconveniencing everyone with stop and search procedures and the confiscation of tent pegs, umbrellas and other items deemed potentially dangerous. Coaker argued that budgetary factors do not, and never should, dictate the policing of demonstrations. He said he is willing to meet the organisers of Climate Camp to hear their concerns, revealed that the National Police Improvement Agency is conducting a “lessons learned” regarding the police’s handling of the demonstration, and said he intends to meet with ACPO representatives to:

get a proper assessment of what did take place there and, if necessary, we can look at the guidance that people put out to the various police forces across the country.

Regarding section 5 of the Public Order Act, Coaker told the committee that he does not believe there to be an absolute right not to be offended; it is context dependent. Given this, it was asked whether he thought it proper that individuals who are easily offended can inhibit the speech and behaviour of others through the actions of the police (as in some of the cases detailed above). Coaker argued that section 5 powers cannot be used arbitrarily but remain heavily dependent on the intricacies of every given situation. Fundamentally, the decision over whether it is appropriate to act on complaints and make an arrest is left to the discretion of the police officer. He accepted that:

the Crown Prosecution Service may then decide that it is silly, inappropriate and not something that they want to pursue.

The committee pointed out that whether or not an individual is eventually prosecuted, they have still been arrested, fingerprinted and had a DNA sample taken. They warned against the police being able to interpret section 5 as widely as they like (for example it is unclear who exactly was offended by a protestor asking whether a police horse was gay). Coaker said:

You do get these examples that are brought up which do sometimes make people wonder whether the power was used appropriately. I will take those examples back, talk to the police about them and see whether we can clarify and get some guidance out of it.

The role of the police as facilitators of protest

Welch and Metcalfe emphasised the positive obligation on the state to facilitate peaceful protest and free speech. Welch, in particular, criticised “bureaucratic obstacles” imposed by local authorities:

I am thinking of things we have heard about at Liberty in the last few months, people being threatened with being charged for road closure orders; people being told that in order to protest at a particular location, they have to take out public liability insurance; I am aware of a group in Lancaster who have been told that if they played music on demonstrations, that would breach the Licensing Act. There seems to be a lot at present suggesting that some local authorities are throwing up other obstacles in the way of people protesting, and we would say that that is fundamentally wrong.

Both argued that regulations restricting the right to protest should not be imposed unless proven to be absolutely necessary. In particular they warned against exceptional cases being used to dictate general policy: “hard cases make bad law” (Welch). Milan Rai, a peace activist and co-founder of the anti-war group Justice Not Vengeance, went further, affirming protest to be:

an activity which ordinary people do and it is like sport or engagement in music and other entertainments, or a variety of things that people do which on occasion in certain forms causes a disruption or inconvenience to other people. So unless we are going to have licensing to go to a football match or to go to a major pop concert or things like that I do not understand the logic of requiring licensing…I do not see that it is such a separate category, it is something that people do, and in my view protest is not coming out of a human need for entertainment or sporting activity, it comes out of a human need to take responsibility for your society.

The police representatives contended that restrictions on protests must be made on a case by case basis to ensure that a reasonable balance is struck between the right to protest, the rights of those being protested against, and the right of the public to go about their lawful business unimpeded. Allison claimed the imposition of restrictions on a demonstration to be rarely necessary, but said that if there is a risk of:

severe disruption to the life of the community, serious criminal damage, serious disorder or intimidation… we can start to impose conditions that are proportionate.

Further, it is vital to enter into dialogue with those organising the demonstration to ensure that this is done effectively. Sim said that most people organising a protest attend a police station, fill out an application form and negotiate the terms of their demonstration (time and place etc.) so that police conditions do not need to be imposed. She argued that problems tend to arise when demonstrators refuse to do this and “would like there to be compulsory dialogue”. The committee suggested that some people are reluctant to deal with the police because:

they feel sometimes that it is not a meeting of minds on an equal level and they feel that somehow in the back pocket the police have these powers and if they do not do what the police want then ultimately you will make them do it anyway (Chairman Andrew Dismore) [conditions can be changed without notice on the day of the protest by any senior police officer].

Allison replied:

the police service does need to have that ability to have conditions and to put them on protests. Why? Otherwise we end up with what I would describe as the situation of anarchy on the street where people can go and do exactly what they want.

Coaker was similarly keen to stress the importance of striking a balance between the right to protest and the rights of others and the effectiveness of entering into dialogue. However, “I know one of the suggestions is to make it compulsory but I would not make the dialogue compulsory.” He said that the police currently do a good job of facilitating protest and that “sometimes it does go wrong but I think the majority of people respect them” and contended that: “I do not think the majority of protestors do have a negative view of the police”. He said that to further improve relationships and increase dialogue ACPO will be inviting protestors to come to their conferences and police training.

SOCPA

Welch and McLeish argued that sections 128-131 of the Serious Organised Crime and Police Act 2005 (SOCPA), which enable police to restrict access to “designated sites” deemed sensitive to national security, are prime examples of unnecessary restrictions to the right to protest. The same is true of sections 132-138 which place restrictions on a large designated area outside parliament and requires those wishing to hold a demonstration there to give the Metropolitan Police Commissioner six days advance notice (or 24 hours in special circumstances). Welch says that many organisers used to do this as a matter of course, but now balk at the idea of being required to do so and refuse on principle. Parliament Square has become an even greater focus point for demonstration and as a result, paradoxically, the need for regulation was created by the law itself.

This is of particular alarm because those who choose to demonstrate outside Parliament without correctly notifying the police can be arrested and ultimately jailed for up to 51 weeks and fined up to £5000: Maya Evans was prosecuted for reading out the names of British soldiers killed in Iraq. Similarly, those who fail to provide adequate notice of a moving demonstration can also face criminal sanction under section 11 of the Public Order Act. Welch highlights the “dissuasive” and “chilling effect” this has on anyone who might contemplate organising a demonstration.

Allison argued that SOCPA, and the limitations it has imposed on demonstrating in Parliament Square, have been misconstrued as restrictions to free speech and the right to protest when in fact the police are duty bound to allow any protest - albeit with restrictions. If a protestor outside parliament is unaware of the provisions of section 132 they are given a warning, an information sheet, and asked to stop. But those campaigners who ignore or persistently challenge the law through direct action (which Allison sees as “romanticised… direct action to me is people acting unlawfully”) such as Mark Thomas, who imposed a “significant administrative burden” by making around 2,500 applications to protest outside parliament, would face prosecution.

Our view in those circumstances is the only place that it is right to take those individuals is before a court and the court make the decision; otherwise it becomes very difficult for us as a police service about what is acceptable unlawful activity and what is unacceptable.

No details of the process by which police determine whether a protestor deserves to be warned or arrested were given, and committee members expressed concern over the inconsistent enforcement of section 132 to Vernon Coaker. They highlighted a case before Christmas where a group of Conservative Party campaigners, dressed as Father Christmas, wearing Gordon Brown masks and holding a banner outside Downing Street, were not arrested or even asked to desist because police decided their actions qualified as a publicity stunt, not a protest. The committee suggested that when individuals are being arrested for reading out a list of war dead – which is better classified as a publicity stunt than the case above – this represents a lack of judgement and poorly exercised discretion. They emphasised the fact that if some of the Conservative campaigners were politicians:

they should know the law absolutely clearly because we all know what the SOCPA rules are, I would have thought, in this building. They do not bother to apply, despite what the law says, and yet they are treated entirely differently (Chairman Andrew Dismore).

Coaker acknowledged the difficulty of distinguishing between a protest and a publicity stunt, and confirmed government plans to repeal sections 132 to 138 of SOCPA in the current parliamentary session through the Constitutional Renewal Bill. The committee pointed out that this Bill is likely to be carried into the next year and run into the General Election and asked why this relatively minor reform could not be part of the upcoming Law Reform Bill or Policing and Crime Bill. Coaker said he would need to seek clarification, but did confirm that in the event of the repeal of these sections, the Public Order Act would be amended to include provisions for ensuring access to parliament.

The Terrorism Act

Metcalfe and Welch expressed concern that the use of police stop and search powers on protestors, under section 44 of the Terrorism Act 2000, has had an intimidatory effect. Welch says:

whatever the police’s motivation, the powers are being used in such a way as is likely to discourage people from participating in lawful, peaceful protest. We hear about people who say that they went on a protest, were stopped by the police, their bag was gone through, their diary was gone through, people find that very intrusive

Metcalfe draws attention to the fact that in recent years security concerns have consistently overridden rights to freedom of assembly and that:

the Metropolitan police justified their blanket authorisations and rolling authorisations of stop and search powers within Greater Metropolitan London on the basis that pretty much any large scale gathering is a potential source of terrorist activity, and therefore, that justifies them using stop and search without reasonable suspicion.

The Terrorism Act is not the only piece of legislation being misused in the policing of protests. Anti-social behaviour legislation can be used to disperse gatherings of two or more people and was employed in 2004 in Birmingham to end protests directed at a controversial Sikh play. Welch is also concerned that the Protection from Harassment Act 1997 has been used by large corporations to stifle protests:

Companies have gone out and got ex parte injunctions, so injunctions without notice [are] being given to the respective respondents, granted in a way that binds not just the named defendants but loads of others besides

Asked if police were using counter-terrorism powers beyond their remit, Allison maintained that while “ there are occasions when we have to accept that there may be those who wish to use the cover of lawful protest to undertake other activity and some of that may be counter terrorism”, the powers are never deliberately used to prevent lawful protest. Despite this, there has been “significant learning out of a number of cases and this is the importance of us [the Metropolitan Police] being challenged through the courts.” He said that the main lesson learned is that officers must be better briefed to ensure:

that when they do use the powers they use the right powers and they explain to all concerned, including recording it, why they used those particular powers.

Police should know when it is appropriate to use other powers of stop and search such as those afforded under Section 1 of the Police and Criminal Evidence Act 1984 and section 60 of the Criminal Justice and Public Order Act 1994.

Coaker endorsed this view, emphasising that the use of anti-terrorism legislation must be frequently reviewed to ensure that it is appropriately utilised. He gave the example of a review of section 44 ordered by the Prime Minister towards the end of 2007 that resulted in changed guidance being published in November 2008. He contended that counter-terrorism powers should not be used to deal with public order or protest, but their use would be justified if a protest was being held at a sensitive location, such as a power station or an airport, and there was reliable intelligence indicating that individuals may attempt to infiltrate it in order to carry out a terrorist attack.

Given that 82-year-old Labour Party member Walter Wolfgang was ejected from the 2005 party conference for shouting “nonsense” at then Foreign Secretary Jack Straw, and held under section 44 of the Terrorism Act when he tried to re-enter, the committee posed the question:

How can we expect the police not to follow an example led to them by their elders and betters? (Earl of Onslow)

Police and the media

In his evidence to the committee, Jeremy Dear, General Secretary of the National Union of Journalists (NUJ), highlighted increasing police obstructions to media members’ right to cover and publicise demonstrations (See Statewatch Vol. 18 no. 3).

We have an ever-growing dossier of complaints from journalists and photographers, ranging from physical attacks to intimidating surveillance, confiscation of equipment or data cards, denial of access, restrictions placed on photography in public places. If dissent is criminalised and even covering dissent is criminalised, just because a demonstration may be unlawful it does not mean that it is unlawful for a journalist to cover it

Alarmingly, journalists and photographers are being targeted by the Metropolitan Police Forward Intelligence Team (FIT). Dear says that despite being told that FIT does not routinely take pictures of “legitimate journalists” and only operates at protest sites, the NUJ has evidence of journalists being surveilled several miles away from the demonstration they were covering. The impact of this kind of police intimidation is to discourage the media from covering demonstrations altogether with alarming implications.

What we are seeing is a group of journalists who regularly cover protests being stopped and searched, way away from the protest, being photographed, having information recorded about what they are wearing, where they are going, who they are working for and so on, and it is creating an intimidatory atmosphere that means people are less likely to go out and cover protests. If we are all saying that publicity is one of the reasons for protest, actually what the police are doing here is undermining that freedom of the media and the ability of protestors to be able to get their message across via the media.

Every police force is supposed to adhere to media guidelines, agreed in 2006, and Dear claims that examples of good practice come when the police have engaged in dialogue with the media before an event and pre-briefed officers regarding the correct implementation of the guidelines. But this is such a rare occurrence that:

these guidelines that we all agreed to – and we sat down for ages with the police to negotiate them – are useless because the police on the street do not know anything about them.

This has resulted in a number of farcical arrests, both of members of the public and the media, such as for photographing the London Eye. Dear argues that improved police training is required to ensure that both the guidelines and media worker rights, enshrined in law, are correctly enforced.

Giving evidence to the committee, Allison offered assurances that officers are briefed on the rights of journalists and refuted any suggestion that they seek to impede upon their right to cover demonstrations. He said that in the past journalists had attended the training of police cadre officers and that this practice would be resumed to ensure that there is dialogue between both sides:

We fully accept that we are accountable and we can be photographed and they have a right to operate and we try to ensure that that message gets to all our officers all of the time, and whenever issues or when incidents where we have not handled it properly are brought to our attention, then we take action against them.

Coaker acknowledged the “extremely serious” nature of the NUJ’s complaints stressing that:

we must not under any circumstances unwittingly put ourselves in a situation where photographers, journalists or others may feel that they do not have the right and do not believe that they can pursue their professional job and the public interest.

He said that he had recently met with Jeremy Dear to hear his concerns and as a consequence some of the police guidance on dealing with the media has been changed. He also said that changes have been made to Forward Intelligence Teams to reassure journalists of their right to cover demonstrations, but didn’t go into detail. Coaker quoted from a recent letter he had written to Dear:

We have addressed this directly in the revised guidance making it clear that the Terrorism Act 2000 does not prohibit people from taking photographs or digital images. The guidance also makes it clear that memory cards may be seized as part of a search but officers do not have a legal power to delete images or destroy film.

He said that he had offered Dear the opportunity to meet with ACPO and to accompany police on future demonstrations to advise them on potential procedural changes.

Links to written memoranda and transcripts of evidence sessions: http://www.parliament.uk/parliamentary_committees/joint_committee_on_human_rights/policing_and_protest.cfm