UN Special Rapporteur on rights to freedom of assembly and association, Mr Maina Kiai, has delivered preliminary findings on the current state of UK protest and assembly. His full report will follow in the coming months. In researching his findings the Raporteur has consulted with a number of UK activist groups and NGOs, including Netpol, as well as visiting various state entities.
Initial findings of the Special Rapporteur included criticism of the use of embedded undercover officers such as Mark Kennedy to infiltrate groups engaged in direct action, and strongly condemn the recent decision by UK courts that targets of this practice should have their cases against the state heard in private.
He called on “authorities to undertake a judge-led public enquiry into the Mark Kennedy matter, and other related cases, with a view to giving voice to victims, especially women, who were deliberately deceived by their own government, and paving the way for reparations.”
Mr Kiai stated, in a press conference that, “the matter goes beyond lessons for the police, and has left a trail of victims and survivors in its wake, This is not a James Bond type issue.” and suggested that the government had acted in a way befitting of a ‘banana republic’. He also noted in his observations that whilst he felt individual officers he had spoken to were for the most part candid, he had been met with a ‘wall of silence’ with respect to issues surrounding Mark Kennedy, one of the police spies involved.
The UN Special Rapporteur also strongly spoke out against the British use of kettling. Whilst taking note of recent decisions in the European Court of Human Rights, he condemned the practice for its ‘powerful chilling effect’ on the exercise of freedom of assembly. In an official statement he declared particular concern “that kettling is used for intelligence gathering purposes, by compelling those kettled to disclose their name and address as they leave the kettle”.
His written statement also said that stop and search “should never be used against peaceful protestors”, and that the use aggravated trespass laws were “very problematic, especially in the context of the increasing privatization of public space.”
The use of police intelligence-gathering against peaceful protesters was a key theme in the findings, as Maina Kiai reported he had “heard concerns about the existence of numerous databases collated by the police from protests and assemblies, allegedly containing personal details about peaceful protestors through various overt and covert means.” Speaking at the press conference earlier this week he linked this to the police practice of criminally pursuing those they had identified as ‘organisers’ , holding them accountable for individual acts committed by participants at protests.
The UN statement also criticised current broad definitions of ‘domestic extremism’ and resultant grouping of protesters into this category. It was identified that “some police officials, while ostensibly differentiating between extremist groups and others that use direct action, often conflate them”. It was later highlighted with concern that protesters had described themselves as being perceived by police as ‘enemies of the state’ simply for engaging in protest.
Whilst the use of police protest liaison officers was in principle welcomed, this was qualified by the caution that their role must be separated from their (arguably key) function of intelligence gathering on protesters. The use of pre-emptive measures such as verbal warnings in advance of protests was termed ‘troubling’.
Whilst the UN Rapporteur described in his report that the Olympic and Jubilee policing operations were ‘very successful’, he did go on to criticise the use of measures such as the pre-emptive arrests which were a key feature of Jubilee policing landscape. Similarly, when questions were put to him as to the mass kettling and arrests which took place at Critical Mass bike ride during the Olympics opening ceremony, the Rapporteur strongly reaffirmed his condemnation of police use of kettling, outrightly identifying it as ‘wrong’ and in breach of international human rights legislation. The use of disproportionately harsh bail conditions – also a feature of the Critical Mass arrests – was also criticised.
The Rapporteur was positive about the use of legal observers being used to monitor protests, though said he had received conflicting information of monitors having been targeted by law enforcement authorities during some peaceful protests.
The report condemned the use of article 13 of the Public Order Act 1986 to ban marches within three London boroughs for thirty days in response to a proposed English Defence League (a racist and xenophobic group) march in Walthamstow. He sait that this was “intrinsically disproportionate and discriminatory as it affects all citizens wanting to exercise their right to freedom of peacefully assembly.” The ban placed on the EDL demonstration also prevented other protests from taking place, including anti-arms protesters at the nearby DSEI arms fair.
The remit of the report was civil society and peaceful protest – as such much of the narrative was focussed around ‘peaceful’ and ‘nonviolent’ protest. However, the Rapporteur acknowledged other forms of dissent may from time to time be felt to be necessary by protesters, such as was used during the civil rights struggle.
The delivery of Mr Kiai’s preliminary findings was supported and enriched by personal examples that the Rapporteur gave of his own experience of protesting, which served to contextualise his statements. He equated the right to engage in lawful protest with the right to engage in lawful business, and stated that protesters must not be treated differently simply for engaging those rights. He also highlighted the disproportionality of the decision to send in undercover operatives to peaceful groups and contrasted that with the potential for corporations such as BAE systems or Marks and Spencer to be subject to similar investigations in the search for white collar crime.
Similarly, where unlawfulness is investigated the response should be proportionate – were Starbucks to be suspected of not paying their taxes they would not be subject to the assaults on persons and freedoms as would protesters suspected of any legal breaches.
The UN Special Rapporteur’s statement indicates serious concerns about the current state of human rights and the protection of freedom to protest in the UK. We await the full report with interest.