It remains unlawful for police to require identification and submission to filming as a condition for release from a kettle
The decision by British Transport Police (BTP) to use Railway Byelaws [, 174 kB] to obtain personal details from people taking part in recent Calais solidarity action does not change the basic advice to protesters – you do not have to consent to having your photograph taken or comply with demands to provide your name and address as a condition of release from a kettle.
The principle that the police have no powers to force people to give their details, or comply with police filming and photography, simply because they are held in a kettle, is contained in the High Court ruling on the Mengesha case in 2013. Lord Justice Moses made it clear that “it was not lawful for the police to maintain the containment for the purposes of obtaining identification, whether by questioning or by filming. It follows that it was not lawful to require identification to be given and submission to filming as the price for release.”
During the protest at St Pancas station after the Anarchist Bookfair on 24 October, BTP officers successfully compelled people to provide their personal details using section 6 (8) of Railway Bye-Laws, which say that “no person shall molest or wilfully interfere with the comfort or convenience of any person on the railway”, coupled with section 23 (1) that says anyone suspected of a breach of byelaws must give their name and address. However, individuals who were confident they had neither molested or wilfully interfered with anyone’s comfort or convenience – and convinced the police have no substantive evidence to prove otherwise – could have reasonably refused to comply with demands for their name and address.
This is a similar situation to instances when police officers wrongly attempt to bypass limits on obtaining personal details during a stop and search at a protest, by using powers under section 50 of the Police Reform Act 2002 intended to deal with anti-social behaviour. If you do not believe the police have genuinely reasonable suspicion, then you can choose not to cooperate.
It is, of course, possible that instead of simply escorting you from the station, officers may decide to arrest you. However, if there is insufficient evidence of ‘unacceptable behaviour’ under section 6 of the byelaws, then it is far less likely that a prosecution for breaching section 23 will ever proceed. Even if it does, it is worthwhile remembering the statistics gathered by Legal Defence & Monitoring Group about the number of cases that are dropped before even reaching a courtroom.
As we have seen since 2013, the police started to use mass arrests to gather intelligence about protest movements, after taking names and addresses before agreeing to release people from a kettle was ruled unlawful. The drawback of the mass arrest tactic, however, is that is likely to prove very expensive if protesters keep winning civil action claims. Despite this, it is important to recognise that events at St Pancras do not represent a sudden or new change of direction: it remains the case that the crudest attempts to gather intelligence during a kettle are resisted by making a choice to protect your privacy and refusing to hand over personal details.
By collectively asserting basic civil rights – and making sure everyone else in a kettle feels confident enough to do so too – protesters can ensure their names and addresses and those of their friends and other activists stay off the secretive National Special Branch Intelligence System.
For what to expect if you are arrested, see this advice from Green & Black Cross