Important as it is, this weeks judicial ruling on police demanding the personal details of kettled protesters is not the only development in protest law in recent months. The following briefing which covers four prominent cases has been prepared by members of the Netpol Lawyers Group, an independent forum for lawyers working in protest law, affiliated to Netpol. It is published here in the hope that it may be useful to campaign and protest groups.
Name of case: Nero v DPP  EWHC 1238 (Admin)
This ruling on aggravated trespass in the Divisional Court makes it more difficult to defend cases on the basis that activity disrupted by trespassing was not “lawful activity”.
The defendants, Matthew Richardson and Gwen Wilkinson, were arrested having ‘locked-on’ at Ahava, a shop in Covent Garden which sold products from Palestinian territories under Israeli occupation. They had gathered evidence to show that the selling of such products was not lawful, due to alleged breaches of labelling regulations, fraudulent evasion of customs duties, and involvement in war crimes in the Occupied Palestinian Territories.
Matthew Richardson and Gwen Wilkinson were charged with an offence under section 68 Criminal Justice and Public Order Act 1994, which states:
1. A person commits the offence of aggravated trespass if he trespasses on land and, in relation to any lawful activity which persons are engaging in or are about to engage in on that or adjoining land, does there anything which is intended by him to have the effect—
a) of intimidating those persons or any of them so as to deter them or any of them from engaging in that activity,
b) of obstructing that activity, or
c) of disrupting that activity.
2. Activity on any occasion on the part of a person or persons on land is “lawful” for the purposes of this section if he or they may engage in the activity on the land on that occasion without committing an offence or trespassing on the land.
In Nero, the issue was the correct construction of “lawful activity” for the purposes of s.68. Laws LJ held that the section provides a defence to aggravated trespass for “the person who obstructs or disrupts an activity which is patently unlawful”. He also suggested that:
“… it is enough for the prosecution to show that the activity in question is apparently lawful. If then the defendant seeks to raise an issue to the contrary within the section 68 proceedings he must, in my judgment, do so by reference to facts or events inherent in the activity itself. He cannot rely on the assertion of extraneous facts whose effective investigation would travel into contexts and controversies which are markedly remote from what is actually being done by way of the activities in question. For the purpose of the section, the activity’s legality is constituted by the activity’s own quality or qualities.”
An appeal was heard at the same time in relation to similar prosecutions brought under s.69 Criminal Justice and Public Order Act 1994, in relation to two defendants who had refused to leave Ahava when directed to do so by the police. This appeal was upheld as the direction to leave was made after the defendants had chained themselves in the shop. They had been physically unable to move until they had been unchained, but the fact that they had left as soon as this was done meant they had left “as soon as was practicable”.
Since the ruling, magistrates hearing other cases have thrown out well-prepared defences relating to the unlawfulness of activity taking place.
The judgment of Laws LJ in relation to s.68 Criminal Justice and Public Order Act 1994 has been granted permission to appeal to the Supreme Court, where it will be known as Richardson v DPP.
Name of case : Hicks and others v Commissioner of Police for the Metropolis  EWHC 1947
15 people were arrested on the day of Royal Wedding (29 April 2011) on the basis that it was believe that their arrests were necessary in order to prevent a breach of the peace. They were detained at police stations for several hours until later in the afternoon when the official celebrations had finished and they were released. They have claimed that this was an unlawful use of police powers of preventative arrest in respect of breach of the peace, and a breach of Article 5 Human Rights Act (right to liberty).
The Judicial Review was heard by the High Court (along with 3 other linked cases) in May 2012 and was lost. The High Court found that the arrests were a proportionate response to anticipated breaches of the peace.
The claimants have been given permission to appeal on a narrow issue relating to Article 5 of the Human Rights Act (right to liberty). The question is whether, when an arrest is made to prevent a breach of the peace, it can be done simply to keep the arrested person off the streets for a few hours (in this case, until the RW celebrations finished) or whether there must be at the time of the arrest be an intention to have the arrested person brought before ‘a competent legal authority’ ie the magistrates court.
Permission has also been granted in another case relating to search warrants obtained for squats in Camberwell the day before the royal wedding.
Retention of data – Domestic Extremism
Name of case – Catt v ACPO & Commissioner of Police for the Metropolis
John Catt is 87 yr old protestor of good character who regularly attends Smash EDO demonstrations (and at times other demonstrations elsewhere). Following a subject access request Mr Catt discovered that there are a considerable number of entries about him on the National Domestic Extremism Database. He sought judicial review of the retention of this information.
After losing in the high court, Mr Catt won his appeal in the Court of Appeal. The Metropolitan Police have applied for permission to appeal to the Supreme Court.
The Court of Appeal rejected the Met’s argument that information gathered about protestors at public demonstrations is “public information” and therefore does not engage Article 8 (right to a private life). The Court of Appeal found that even public information and information gathered from open sources will engage Art 8(1) when it is collected and systematically processed by the state. Its retention will therefore have to be justified in accordance with Art 8(2).
The Court of Appeal found that the retention of information about Mr Catt which did not contain any suggestion of unlawful activity by him was disproportionate given that the police had failed to provide any evidence as to how the information retained would assist in the investigation or suppression of crime – or any other lawful purpose.
Mr Catt had also argued that the Data Protection Act 1998 and the Management of Police Information (MOPI) guidance and was not a sufficient legal framework to ensure that police retention of data was “in accordance with the law” for the purposes of Art 8. The Court of Appeal, having found the retention of data to be disproportionate, did not rule on this point.
The decision is helpful for protestors who want to challenge the lawfulness of retention of their data, but given that the case was decided on proportionality rather than legality it will still be necessary to assess whether the police are likely to be able to justify the retention on the facts of the particular case. Mr Catt’s facts were pretty perfect and it will obviously be a lot easier for the police to justify retention where the information contains details of purportedly criminal or suspicious behaviour.
Violent disorder – student demonstration.
In March Alfie Meadows and Zac King became the latest and last people to be acquitted of violent disorder on the student demonstrations in 2010.
The jury returned its verdict to a packed courtroom after four hours’ consideration, following a four-week trial (each day of which at Woolwich, we were informed in opening remarks, costs around £14,000).
Both Meadows and King had been on bail for more than two years while awaiting a verdict. Their first trial, in March last year, saw a hung jury; the second was aborted in November, and resumed in February this year.
The jury heard from both Meadows and King how they felt they needed to defend themselves and other protesters from police violence. Meadows had helped a crowd use crowd control fencing as a barrier against a police line; King had strapped shin-guards to his arms and used them to block police baton strikes against himself and other demonstrators. Both described the mood of the crowds changing after containment. Both recounted seeing police officers use batons and shields to strike people who were simply standing in the crowd, and against those who had fallen, as well as against those immediately facing police lines.
It was noteworthy that during the trial that ‘Kestrel units’ (baton rounds) were requested by one of the Bronze commanders. This option was considered by silver Commander, although he decided not to make use of it.
Alfie Meadows is now pursuing a civil claim for damages against the police for the serious injuries he sustained on the Dec 2010 demonstration.