This is a guest post by Harry Stopes (@HarryStopes)
The use of restrictive bail conditions on protestors, many of whom have been arrested en masse, is a worrying trend evident in policing over the last two and a half years. The most recent example to be reported was that of Michael Chessum, the President of the University of London students’ union. He was arrested under section 11 of the Public Order Act, for failing to notify the police of a demonstration, and was bailed on condition that he refrain from engaging in any protest, at any university, or within half a mile of any university.
These bail conditions are supposedly designed to prevent re-offending, but in fact do nothing of the sort: the risk of a person committing a section 11 offence is unrelated to their ability to protest in general. ‘Universities’ are specified precisely because it is Chessum’s role to campaign on behalf of students at universities across London
Anti-fascists arrested at protests against the BNP, EVF and EDL over the summer have had similarly targeted conditions imposed upon them, preventing them from protesting against named fascist organisations at locations within London. These have included organisations who were not present at the original protest at which the individual was arrested. For instance, people arrested while protesting against the BNP have been prevented from protesting against the EDL. On the same basis, some UK Uncut protestors arrested at Fortnum and Mason in 2011 were told that they could not be present anywhere in central London on the day of the royal wedding a few months later, presumably because their politics made them undesirable. Just as in Chessum’s case, an arrestee has been politically profiled, a reasonable inference has been drawn (after all, it is likely that an anti-BNP protestor will wish to protest against the EDL) and used as the basis for unreasonable overly restrictive bail conditions designed to specially target that person’s political activity.
That when dealing with protest the police have only distant familiarity with the ideas of liberty, proportionality, and even the law itself, is not a revelation. However, it is interesting and sobering to think about the use of bail conditions specifically in the light of some other long term trends – and future possible developments – in policing and the control of ‘anti-social behaviour.’ In this sense, the use of bail conditions on an ad-hoc basis to prevent individuals from engaging in otherwise lawful political activity, may presage a formalisation of this power in the form of the new Injunctions to Prevent Nuisance and Annoyance (IPNAs).
The Anti-Social Behaviour Bill, which proposes to replace ASBOs with IPNAs and another measure called a Criminal Behaviour Order (CBO), has been described by the Home Affairs Select Committee as providing “a broader definition” of anti-social behaviour; “a lower standard of proof, increased sanctions, and increased durations.” CBOs will only be issued on conviction of a criminal offence, but an IPNA will issued by a magistrate if he or she is convinced that the individual “has engaged in or threatens to engage in conduct capable of causing nuisance and annoyance.” As well as being based on this incredibly broad rubric – which could easily be used to describe protest of the sort described above – IPNAs will be issued not on the basis of the criminal standard of proof (“beyond a reasonable doubt”), but simply on the weaker standard of “on the balance of probabilities.” Applications for IPNAs can be made by the police (including the British Transport Police), local authorities, the NHS, housing associations, TfL, the Environment Agency and the National Resources Body for Wales.
So if “on the balance of probabilities”, a person has engaged in conduct which could cause “nuisance or annoyance,” she could be issued with an IPNA, preventing her from, say, participating in protest within half a mile of parliament, or standing outside a shop distributing literature about its use of unpaid workfare labour.¹ There are only minimal protections (for instance, for those engaging in peaceful picketing) built in to the legislation as it currently stands, and, as the Home Affairs Select Committee noted, there is no requirement stated in the legislation for conditions to be “necessary and proportionate for the purposes of addressing the behaviour that led to the application for an injunction.”
IPNAs could be applied for an indefinite length of time. Breaching the conditions imposed could result in an unlimited fine, and imprisonment for up to two years.
Welcome to the future of policing. It’s like the present, but even worse.
¹ IPNAs of course have many other potential applications, for example against beggars, rough sleepers, young people and others. None of this is intended to privilege one group or to suggest that they are exclusively at risk.