‘Most district judges don’t want to convict peaceful protesters because they have an understanding and respect for human rights law, and it would be inappropriate for them to do so,’ says Matthew Varnham, a legal adviser. ‘What tends to happen at protests is that the police have an objective that is not necessarily the same as the courts. The police’s objective is to clear an area and prevent public disorder. They will find a piece of legislation that allows them to do so, whether or not they anticipate it is going to end up in a conviction in court.’
The police only need to believe there are reasonable grounds to make an arrest, Varnham adds. Those who are arrested are not necessarily charged, and when they are it is the Crown Prosecution Service that decides whether the case goes to court.
The implication is that many arrests are never followed up, raising questions about the use of arrest powers to restrict the right to peacefully protest. In recent years, mass arrests have become increasingly common. High-profile cases include the arrests of 182 cyclists on the Critical Mass bike ride on the day of the Olympics opening ceremony and 138 arrests at a peaceful sit-in at Fortnum and Mason’s luxury store in 2011. In both cases, only a handful of protesters were convicted – but many more were barred from future protests.
In December, the Guardian revealed that the police are using pre-charge bail conditions to prevent people from attending demonstrations. Their data showed that around 85 per cent of those banned from protesting since 2008 have not been charged with any crime.
One of these people is Sam. The 25-year-old student, who prefers not to give his full name, was arrested at a protest at the University of Birmingham in January 2014.
‘The police formed a line over the only available exit and didn’t let anyone leave. We were held there for a couple of hours until eventually they started letting people leave. But they were requiring that people give their name and address and were filmed,’ he says.
‘Those who refused to give their details because they felt there was no legitimate reason they should be taken were arrested and taken to a police station. I was one of them.’
Sam was then held at a police station for over 26 hours. Upon his release, he was given bail conditions that prohibited him from going to any higher education institution, congregating in groups of more than five people or seeing any of the other people who had been arrested. He also had to stay at his bail address every night.
‘The gist of the bail conditions was that you shouldn’t participate in any form of protest whatsoever, because there’s very little way of being involved in a protest that doesn’t violate at least one of them,’ he says.
As soon as Sam challenged the bail conditions in court they were lifted and replaced with one barring him from going into Birmingham, which he still felt was excessive ‘but it points at that the police can give the bail conditions they want without any supervision or oversight’. Eventually he was told that no charges would be pressed against him.
The containment of protesters, or ‘kettling’ has also been criticised – for example by the Joint Committee on Human Rights – for its indiscriminate nature and large numbers of people involved. The UN special rapporteur on the rights to freedom of peaceful assembly and association has raised concerns that ‘it appears that kettling is used for intelligence-gathering purposes, by compelling those kettled to disclose their name and address as they leave the kettle, increasing the chilling effect it has on potential protesters’.
Sam speaks too of the anxiety he experienced when the date he was due to appear at the police station was postponed. ‘That process is very damaging to you and your ability to collectively organise, which is crucial in situations like these. Being able to stop that immediate political organising for even a couple of months can completely destroy the momentum,’ he explains.
After a wrongful arrest, there is – at least in theory – the possibility of taking legal action against the police. But Matthew Varnham points out that ‘civil legal aid as an avenue for funding for actions against the police has been virtually wiped out’. Sam is applying for legal aid but he is not sure whether he will meet the criteria. Without legal aid, the cost of any lawsuit might run to tens of thousands of pounds because of the risk of incurring the other side’s court costs.
Varnham argues that ‘if anything a police officer does would open them up to immediate possible criminal sanctions, they wouldn’t have the confidence to do what is being asked from them’. When I discuss this point with Sam, he reminds me that the police are in fact acting illegally at demonstrations: ‘It’s like me saying that in my everyday life it would be so difficult to not break the law. We don’t accept that kind of argument from anywhere else in society, so I don’t see why we should accept it from the part of society that is legally allowed to use violence.’
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