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Policing and Protest
A submission to the Joint Committee
on Human Rights
By Milan Rai, Justice Not Vengeance
This paper was submitted in October 2008
in response to the call by the Parliamentary Joint Committee on
Human Rights for written evidence in relation to Policing
and Protest. It responded to particular questions raised in
the consultation document. Milan Rai was invited to give oral
evidence to the Committee on 21 October 2008.
1) Questions of principle
In general, freedom of expression is a central
value in the continual struggle to develop and expand democracy.
Without freedom of expression, not only is there no check on concentrations
of power such as the State executive or corporate elites, but
there is, in a deeper sense, no opportunity for the general public
to develop its own understanding of the social situation through
dialogue.
Freedom to protest is one element of freedom
of expression, and a vital one, as extra-parliamentary protest
can be an effective means of exerting restraint on concentrations
of power when conventional channels fail to defend basic principles
or to reflect the wishes of the majority.
When we reflect on the history of the last
century, it is painfully clear that the great powers of the modern
age have suffered from too little rather than too much dissent
and disruption. The problem of our time - certainly in the West
- has been large-scale conformism and acquiescence in great crimes,
rather than the muted and intermittent rebellions against them.
It is therefore critical that the State executive
is forced to respect the right to peaceful protest, and to remove
legislative, procedural and other obstacles to such activity.
I am reluctant, however, to endorse the notion
that the State should 'facilitate' peaceful protest. Ideally,
the State should negotiate between the competing interests involved
in a protest situation, and raise as few obstacles as possible
to nonviolent protest. The word 'facilitate' has an undercurrent
of 'assisting' or 'making easier' - I think that neither the police
nor the protesters should consider the police role in this fashion.
Protesters have a right to protest. The police
force is charged with preventing criminal activity (assuming that
protest itself is not criminalized). These are separate roles.
To consider the police role as one of 'facilitating' protest tends
to give them an elevated or paternalistic position which is inappropriate
in a properly-functioning democracy.
Before proceeding, there is a question of
context which we should address. Many of the major protest movements
of recent times in Britain have been sparked by major State crimes.
The invasions of Afghanistan and Iraq were
violations of international law on a grand scale, amounting to
the supreme crime of aggression. The harm done to persons and
property - and to the fabric of international law - as a result
of these reckless crimes is incalculable.
In this context, it is shameful, in considering
the role of the police, to restrict one's attention to the question
of what limits should be placed on protest.
For millions of people in Britain (setting
aside the possible interest of the peoples of Iraq or Afghanistan),
the question is: what limits should be placed on Government, and
on the unfettered power of the British Government to make war
outwith the Charter of the United Nations?
How can the police, charged with detecting
and preventing crime, and arresting and charging the perpetrators
of crime, be forced to live up to their responsibilities in relation
to some of the greatest crimes of our era?
When one considers the scale of the crimes
involved, it is easier to properly evaluate the threat to social
order from the limited, timid and muted activities of the anti-war
movement (I do not exclude myself from this category).
In principle, when protest moves into the
realm of physical harm (or threatened harm) to people or property,
or the disruption of legitimate activity, there begins to be a
role for the police. However, protesters can often legitimately
invoke the defence of necessity for their unconventional actions,
despite considerable property damage or social disruption.
One thinks of the Greenpeace
activists recently acquitted despite admitting £30,000-worth
of damage to the Kingsnorth coal-fuelled power station, for example.
The problems arise acutely when the police
and judiciary - and Parliament - have failed to act to defend
the rule of law when this has been threatened or violated by the
Government, as in the case of aggressive war.
More problematically, as with the Kingsnorth
example, or with nuclear weapons, there are sometimes fundamental
challenges to social existence, and therefore to the foundations
of law, which have not yet been incorporated into law.
In such circumstances, protest is of fundamental
importance to the continuation of society, but does not receive
legal protection. It is difficult to conceive of ways in which
police discretion could be modified to take account of such cases.
In all of these, and similar cases, while
Parliament and the law fail to address overwhelming social problems,
and to offer effective constraints on the destructive behaviour
of the State and other concentrations of power, one cannot expect
police procedure or public order law to offer any remedy.
A similar problem arises in relation to animal
rights. While few are convinced that animals (we may restrict
the discussion to mammals for the purposes of discussion) should
enjoy the rights afforded to human beings, it is the case that
there has been a significant movement towards recognizing some
degree of animal rights in law over the last century.
It is likely that this trend will continue,
perhaps even accelerate (one thinks of the moves in Spain to grant
primates legal rights) and that therefore animal rights protesters
will shortly be seen in a somewhat different light.
If this is the case, then it may be proper
to consider the activities of the animal rights movement in the
light of the vast scale of animal suffering currently tolerated
by the law.
One of the questions posed by the Joint Committee
asks whether there are particular groups of protesters whose rights
to protest should be limited.
I can see no argument in favour of such selectivity.
The criterion for police action should be
the actions of the particular individual(s). If a protester engages
in nonviolent protest, they should enjoy the same freedom as any
other protester engaged in such activity. If they engage in criminal
acts (leaving aside the qualifications entered above), they should
be arrested and prosecuted in exactly the same fashion as any
other protestor.
The cause involved, and the general tenor
of that movement, should not affect police procedure or police
behaviour.
Freedom of expression is either universal,
or it is no longer a freedom. If it is selective, it becomes a
privilege granted by the State to permitted opinions.
It goes without saying that this principle
applies as much to neo-Nazis and Holocaust-deniers as to civil
liberties protesters; as much to the Countryside Alliance as to
the Animal Liberation Front; as much to supporters of the Israeli
occupation of neighbouring territories as to the Palestine Solidarity
Campaign.
Police powers in relation to protest should
guarantee freedom of speech and freedom of expression - whatever
the variety of speech.
The exception, in my view, should be speech
which crosses into the realm of action, as with incitement to
immediately commit criminal acts. This exception should not, however,
permit police action against speech which consists of generalized
encouragement of such acts.
2) Parliament
I can see no argument for restricting protest
in any particular geographical areas - such as in
the vicinity of Parliament. Parliament is a focus for extra-parliamentary
protest because it is a vital part of British democracy.
There is no security risk posed by the presence
of protesters which is not posed by the presence of commuters
and tourists. Certainly, the risk from protesters is orders of
magnitude lower than that posed by the presence of vehicles and
vessels in roads and on the Thames immediately around Parliament.
While the movement of commuters, tourists,
vans and boats is uncontrolled, there is no rational basis for
controlling nonviolent protest around Parliament.
Section 128 of the Serious
Organised Crime and Police Act (2005) also criminalized trespass
at designated national security sites - a number of military bases,
all licensed nuclear sites, Downing Street and other locations
in Whitehall, and so on.
The purpose of this legislation is clearly
to criminalize nonviolent protest. Terrorist activities, for example,
can and would be prosecuted under a multitude of other laws. I
can see no justification either for the criminalization of the
civil offence of trespass, or for the geographical discrimination
involved in the designation of these 'protected sites'.
3) Policing in practice
It is my experience that the policing of
protests is determined to a considerable extent by the perceived
acceptability of the opinions being voiced. I regard this as unacceptable.
There is also discriminatory policing based
on the perceived acceptability or 'dangerousness' of the group
organising the protest. While it is right and proper for the police
to prepare appropriately for different kinds of protests, by different
kinds of groups, this does not excuse harsh and discriminatory
treatment of stigmatized protestors - behaviour which merely hardens
attitudes among already-alienated protesters.
For example, a police tactic which has evolved
in recent years consists of isolating a group of people (protesters,
media personnel, passers-by) in what is known by protesters as
'kettling'. Often the police do not permit people trapped within
the cordon to leave unless they give their names and addresses,
and allow their possessions to be searched.
This unacceptable, repressive and intrusive
policing tactic is generally reserved for stigmatized protest
groups.
The operational equivalent is the use of
counter-terrorism powers in policing protest - as in the case
of the peace camp at the B-52 bomber base near Fairford, Gloucestershire.
The taking of people's details, and search
of their possessions, was justified by recourse to section
44 of the Terrorism Act (2000).
Along with other examples of the abuse of
counter-terrorist legislation (see, for example, John
Catt's recent successful appeal to the Independent Police
Complaints Commission in relation to his section 44 arrest at
the 2005 Labour Party Conference for wearing an 'unacceptable'
T-shirt), this is evidence of a general trend towards repressive
policing of protest.
Either terrorism laws are there to counter
terrorism or they're not. They should not be used against protesters.
(I leave aside the question of whether recently-passed
terrorism laws are necessary or effective in dealing with political
violence.)
Any experienced criminal lawyer or protester
knows that the police in practice go beyond the letter of the
law in pursuing their objectives - in this case, a certain kind
of public order.
Every additional police power to repress
protest that is passed by Parliament constitutes a signal to the
officer on the beat that dissent and disruption, however mild,
however nonviolent, is a blot on the social and physical landscape
- to be minimized and neutralized wherever possible.
4) My case
My direct involvement in this debate began
in October 2005, when I rang the Events office at Charing Cross
police station to register the fact that I was organising a remembrance
ceremony for Iraqi civilians and British soldiers who had died
in the Iraq war, to take place opposite Downing Street. I knew
that the law on protests near Parliament had been altered recently,
but did not know the details. I was informed of the new regulations,
and sent an application form for our event.
Initially resigned to the new arrangements,
and ready to fill in and sign the form, I became more and more
troubled by the loss of freedom involved in moving from a system
of voluntary notification to one of compulsory advance registration
and authorization of nonviolent protest.
I rang the Events office once again, to inform
the police that I was unable in good conscience to fill in and
return the form, but that I would be going ahead with the remembrance
ceremony - which they quite rightly saw as a protest against the
ongoing war in Iraq.
I was arrested on 25 October 2005, within
ten minutes of beginning to read aloud the names of Iraqi civilians
who had died in the war and occupation. (My colleague Maya Anne
Evans was reading aloud the names of British soldiers who had
died in the conflict.) I was convicted of organising an unauthorized
protest under the Serious Organised Crime and Police Act (SOCPA)
on 12 April 2006, and fined £350 (with £150 court
costs). I served a 14-day sentence in HMP Wandsworth for non-payment
of this fine, beginning on 23 August 2007.
As I told Horseferry Road Magistrates Court
upon conviction, I felt bound to stand by my judgement that one
should not require police permission to remember the dead, and
therefore I could not in conscience pay any fine for failing to
obtain the permission of the police to do so.
I should perhaps point out that the prison
sentence included a penalty for failing to pay a fine for a later
name-reading ceremony at the October 2006 'No More Fallujahs'
peace camp in Parliament Square, for which both I and Maya Anne
Evans were convicted of both organising and participating in unauthorized
protests.
One of the strange aspects of SOCPA protest
restrictions has been the arbitrary pattern of arrests and non-arrests
at different events, or of people at the same events. At the 'No
More Fallujahs' peace camp, there were a few arrests - though
those arrested were subsequently released without charge; most
people were neither arrested or asked for their details; and only
two people (not arrested on-site) were prosecuted - Maya and myself.
I personally have experienced no police mistreatment
during this sequence of events. The police officers involved in
my case have behaved with professionalism and courtesy throughout
- while implementing a nonsensical and frankly time-wasting law.
However, I have witnessed harsher treatment of other protesters
involved in the same protests.
5) The Future
In relation to protests around Parliament,
I understand that one proposal is the replacement of 'compulsory
advance registration and authorization' with 'compulsory advance
registration and notification'.
While this seems to remove the power to impose
conditions - which under SOCPA threatened to neutralize political
protest by limiting the time, location, size and visibility of
demonstrations - there is a problem.
The demand for compulsory notification is
equivalent to authorization, in that if advance notification is
not given (in the approved manner), the protest will be illegal
- it will not be authorized.
If there is to be a move back towards 'notification',
the word must mean something, and this must mean 'voluntary notification'.
I would like to make three general concluding
remarks.
Firstly,
I suggest that the starting point for legislation in this area
should be the defence of the twin freedoms of expression and assembly.
Human rights should be at the centre of our concerns, rather than
being treated as an annoying and possibly dangerous fringe element.
Secondly,
that there should be a legal right to protest in public spaces,
including privately-owned semi-public spaces, such as privatized
parks or city centre areas, as Liberty has argued in its recent
compelling submission to the Joint Committee on Human Rights.
Finally,
recent decades have seen a sea-change in public attitudes towards
protest, as extra-parliamentary protest, even nonviolent civil
disobedience, has become more and more acceptable to the British
public.
There is, I believe, a deepening appreciation
of the unprecedented scale of the problems confronting us, and
a perhaps unprecedented degree of desperation for social change.
Granting further repressive powers to the
police could help to stifle these hopeful developments. Removing
existing repressive legislation could help to nurture the growth
of an active citizenship that lays the basis for a decent future.
Milan Rai,
Justice Not Vengeance
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last updated 8 October 2008
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