Monthly Archives: September 2013

The (police) pen is mightier than the sword

A rather strange thing happened today. I had decided to dedicate my last research day of the summer to re-reading a couple of articles by US academic Timothy Zick, one of the very few commentators engaging with something I have been thinking about: the relationship between place, and space, and protest. In one, he was analysing recent developments such as free speech zones at party conventions and the penning in of protesters behind wire mesh. At lunch, I glanced at my Twitter feed to discover the High Court had just handed down judgment in the UK’s first protest pen case, Wright v Commissioner of Police for the Metropolis. This short post will summarise and analyse the judgment of Jay J (yes, really Jay J!) and offer one or two brief thoughts on where this might leave us in thinking about “the place of protest, the places of protest” – which is the lengthier piece I am currently working on.  It is by no means a comprehensive analysis or note.

On 30th March 2011, Shimon Peres, the President of Israel came to the UK on a state visit. He was due to give the keynote speech at a seminar at Chatham House in London, recognising 60 years of British-Israeli diplomatic relations. The Palestinian Solidarity Campaign decided to hold a demonstration outside and Joseph Wright, the claimant, was part of it along with about 40 others. He was contained in a police pen between shortly after 09:27 and 10:42, implemented as a security measure to prevent a breach of the peace. He claimed damages for damages at common law (for false imprisonment, assault and battery) and under section 8 of the Human Rights Act (for breaches of his rights under Articles 5, 10 and 11 of the ECHR). None of his claims succeeded. In terms of the operative, tripartite test (see [27]) set recently by Moses LJ in Mengesha, the High Court decided there was a reasonable apprehension of an imminent breach of the peace – that is, the officer honestly believed a breach was imminent and that belief was made on reasonable grounds – the measure was necessary and was also proportionate. It is clear from the judgment that the operating factor was the claimant shouting out (at 09:27), “Shimon Peres is coming this way” as his official car appeared on the scene, and beckoning to others. It is at that point that Wright is gently pushed into the pen. Though not without a measure of hesitation (see [60]), Jay J concluded on the balance of probabilities that the officer did have reasonable grounds.

The principal ground for the containment was a belief that one or more persons, whoever they might be, would seek to advance at speed in the direction of Mr Peres’ car. [The police] interpreted [Wright’s shout] as liable to provoke action of this nature, regardless of whether that was in fact his intention. [The officer] no doubt also believed that the Claimant himself might form the vanguard of such action: self-evidently, he could not know what was passing through the Claimant’s mind. He had to respond in rapid real time to the situation as it was developing before him (at [61]).

The containment was both necessary – the alternative source of power to control, s.14 of the Public Order Act being unavailable – and proportionate, His Lordship rejecting the argument that the police should have waited and arrested individuals as and when the need and justification arose (see [68]-[69]). Thus the common law claim (and, synonymous with it, that under Article 5) failed. So did the claims under the HRA for breaches of the qualified rights in Arts 10-11, in light of the earlier findings on proportionality and necessity.

Wright is one of long line of cases in the past few years in which the ability of the police to control protests using the residual common law power to prevent breaches of the peace by imposing some form of containment has been before the courts. None has ultimately been successful. Most well-known is the domestic and ECHR case of Austin, on which I have blogged elsewhere. Moos and McClure, though it succeeded at first instance – the court holding that as the threat didn’t come from the contained group, imposing a kettle was unlawful – was overturned, on what might be thought a technicality, by the Court of Appeal: that the court below had not taken the correct approach to assessing the imminence of the breach. Even kettling children was held not to raise any especial problems for the police under the Children Act 1989, according to the High Court in Castle. Mengesha is a success but is properly not seen as a challenge to the imposition of a kettle but to how it was operated and in fact brought to an end, holding it was unlawful as a condition of leaving a kettle to demand (request?) personal details and to be photographed. Wright though is the first police pen case to come before the Courts and for that reason alone is important. Whether much turns on being contained – kettled – by officers linking arms, or by maintaining a line of horses or by physically constructing a pen with barriers does seem moot – and to miss the point somewhat, which is the seeming uncontrollability of this power. While Laporte did trim some excesses from the common law – and its nadir of Moss and McLachlan during the 1985 miners’ strike – it is, as Andrew Ashworth makes clear ([2007] Crim LR 576), very much a decision on its facts: had the police not been candid enough to admit the threat at Fairford was not imminent, it would have gone the other way. While we should not judge or assess the validity of claims for legal reform like football scores, the fact that no one has successfully challenged the imposition of police containment in four attempts should make us pause for thought. It more and more resembles arbitrary, random mass detention on suspicion of very little indeed. More so when the police rely on the common law power when they cannot avail themselves of the statutory power – with its carefully crafted balanced framework. Richard Stone makes this point, and finds limited echoes in some of the words of Lord Bingham in Laporte (at [45]). Wright, it is to be hoped, can only strengthen calls for codification of the common law power – perhaps as part of the coalition’s plans to restore the right of non-violent protest promised in their 2010 Agreement (oh look, there’s a pig in the sky).

Of course the real problem of the power is its indiscriminate use – and potential – bringing into the realms of Foucauldian discipline, if not of punishment, many who (simply put) are not, will not be and have no desire to be troublesome, disruptive, aggressive let alone violent. I have no idea who Joseph Wright is – and certainly make no claim to know what he was thinking that morning – but if shouting out “Shimon Peres is coming this way” constitutes grounds to be pushed, ever so slightly, into a place you do not want to be, and where you think your protest will be less effective, then we have reached a very sorry state indeed. Will Directioneers (note to Ed – contemporary cultural reference to show awareness) be corralled outside the O2 as they spot their heroes and make to rush towards them? If not, and I suspect not, we have a clear case of what under US 1st Amendment jurisprudence would be seen as content-based regulation.

In terms of the judgment itself, it must contort ordinary English language to hold – as Jay J did ([14]) that the earlier containment (from 09:07 – 09:27) was voluntary. Not that anything turns on this, since Wright’s claim was for the later period, but holding it was voluntary as being borne out by the fact that one or two were allowed to leave does not really tell us about the imposition of the containment in first place. In any event the admitted fact that some of the group were warned they would be arrested for breach of the peace if they did not comply does rather change the contours.

Secondly, it is puzzling that Jay J looked only to Nicol and Selvanayagam when assessing the position where Y breaches the peace as a result of X acting reasonably in the exercise of his rights. After all here, that is simply all Wright was doing when shouting out – and as we have seen, that was key in his losing the case: he was exercising is free standing right to free speech, under Article 10. Nicol is, first, a case from 1995, and so decided before the HRA came into force. Why not the 1999 case of Redmond-Bate, clearly decided by Sedley LJ with one eye on the HRA even if not in force? In any event, these are simply the wrong cases to use – they provide the wrong framework for resolution. The worry in the instant case was that Wright’s conduct – his words – would provoke others in his group to attack or approach Peres’ car – not that another group would be so outraged (if anyone could be outraged by “look there’s Peres”) as to attack the Palestinian Solidarity Campaign. None of the cases – not Beatty v Gillbanks, nor Wise v Dunning – is precedent for what was feared here. Even if they were, they could surely be distinguished on the basis of lack of any inflammatory language – hence the relevance of Redmond-Bate, where the citizen was successful. Last, Jay J (at [66]) seems to have conflated two separate legal questions, that of the reasonable apprehension on the part of the police and the reasonableness of the protester’s actions, or words: “I have found that his actions were such as to cause the police reasonably to apprehend that someone would rush forwards in the direction of Mr Peres’ car. That would have been unreasonable action liable to cause a breach of the peace, whether it be directly … or indirectly.”

My last point goes to some of the wider concerns about place and space that I hope to explore in my longer article. I shall allude only to a little of it, and discuss a few of them very briefly. One of the reasons that Jay J decided there was no breach of Article 10 or 11 was ([74]) that the “interference …was in any event close to minimal: the Claimant was still free to demonstrate and to associate, albeit not quite where he wished to.” That is not the marginal point it seems. First, it denies any autonomy to the speaker: his, or her, choice about venue and location – the advantages of spot A over spot B in terms of efficacy – is given no weight. After all, had Wright wanted to protest where the pen was, no doubt they would have tried to sooner but it must have been ruled out for good reason. We thus have the state dictating where – not simply when and on what – we can lawfully protest. This is not new – routes are regularly re-routed (as took place last weekend for the EDL’s planned march in the East End of London) – but there is a wider public interest at stake here. Penning people into a small area, barricading them apart, sends out a message: protest is something frowned upon, something not valued – or not as valued as allowing a foreign president undisturbed access to a building – something to be discouraged, and something that is discouraged – or at least is discouraged on topic X, something much worse as creates skew – as something that is only to occur on terms set by the state – which, of course, has a vested interest in (and rightful duty of) preventing disorder – and so will favour orderly protests over disorderly. It is true too – and see my earlier point about One Direction – that protest tends to be oppositional, tends to be against “stuff”: very few turn out to clap and cheer government policy on a daily basis and if any were to, the likelihood is that they wouldn’t get cross. People who are against things, against decisions, against policies, tend to get crosser…and as governments make decisions and have policies, naturally people want to protest against them – so protest, and protest space and protest places, are always and essentially contested, battles in and of power – trying to get more, trying to keep what they have… so is it fair, is it right, is it sensible that the likely targets of that ire – the state, at least in the shape of its police force – should be the ones to set the terms of engagement? This was what I was thinking about today, prompted by two splendid pieces by Tim Zick on “spatial tactics” and “expressive topography” here and here, and which came to a head in Wright.

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Filed under Free speech, Human Rights Act, Policing, Protest