Wrongs threatening our rights: A lawyer advises on increasing conditions being imposed on protests by UK police

Increasing numbers of conditions are being applied to UK protests, writes lawyer Raj Chada

EACH GENERATION AND, indeed, each country holds iconic images of protest in its memory vaults. In the UK, these stretch from anti-fascist demonstrations of the 1930s in Cable Street to modern-day direct action against multi-national corporations. Throughout history, there has been a tension between those who seek to preserve order and minimise disruption with the very essence of protest itself – namely that protest is visible and is designed to effect change. That tension is still played out in the 21st century.

The right to protest is not an absolute right. Protest can be restricted and even curtailed in the UK. For example, the police can impose conditions on any protest. Any condition, however, must be proportionate and reasonable and must take into account our right to free speech and free assembly under Articles 10 and 11 of the European Convention on Human Rights.

Police can impose conditions about where a demonstration can take place and the route of any march, as well as its timing or duration. If any protester breaches these conditions, he or she can be arrested for committing a criminal offence. Despite a need for proportionality, the police’s record in this area is lamentable.

Conditions have been imposed on a range of demonstrations in the last few years, followed by the prosecution of scores of individuals for breaching those conditions. In 2013, in the largest mass arrest in living memory, about 280 people were arrested at an anti-English Defence League march in Tower Hamlets for allegedly breaching the conditions imposed by the Metropolitan Police. The investigation was soon dropped and civil claims are pending.

This followed more than 100 arrests on the opening day of the 2012 London Olympics. On that occasion, the police had imposed a condition on a monthly bike ride, namely that it not be allowed to go north of the River Thames lest it be used to go to the Olympic Stadium and act as a protest. Nearly all the cases were dropped or resulted in acquittals, and civil claims are pending. Yet imagine the outrage in the British press if it were determined that protests in Rio de Janeiro were to be confined to an area well away from an Olympics site.

There clearly still exists an irrational fear and contempt for protest that belittles our position as a mature democracy.

Conditions on marches are not the only source of anxiety. Another aspect relates to the taking of photographs at demonstrations and whether they end up on a database. Cases have consistently held that it is lawful for the police to take photographs of demonstrators, even though many find this unsettling, but there are limits on the ability of the police to retain the image. Protesters rightly question the need for the state to record who attends demonstrations or political meetings in the absence of any criminal offending and, in particular, how such material is stored.

While the police maintain that such photographs and recordings are routinely destroyed, this is not the case. An official watchdog, the UK’s biometrics commissioner, recently issued a fresh warning of the police’s use of more than 20 million facial images on their searchable database – more than five years after the courts ruled that the inclusion of the images of innocent people was unlawful.

In one recent example, the Metropolitan Police used facial imaging to check those attending the Notting Hill Carnival. Even more worrying is that it seems police review this footage for the purpose of classifying and looking for what they term “domestic extremists”, adding the personal details of these people on a separate database. There is no outside scrutiny of this process and the fear is that profiles of those who attend certain types of protest can be built up.

Left to their own devices, law enforcement always seems to take a negative view of activist or protest groups. The infiltration of political groups by undercover officers is perhaps the most disgraceful example of this. Undercover officers have infiltrated groups, deceived women into forming intimate relationships – including, in some cases, having children with them – and collected information about groups and grieving families such as the parents of Stephen Lawrence. There are also suggestions that undercover officers have sought to direct protest groups as to what action they should be taking.

Protest and activist groups cannot be free if officers of the state are keeping tabs on them, reporting back and subverting them from within. The government has set up a public inquiry to review these matters, but progress is painfully slow and we still await its recommendations.

CREDIT: Gillian Blease/Ikon

These are all examples of the challenges that the right to protest still faces in the UK. There are many others. We must guard against these restrictions. The essence of democracy is its capacity to resolve problems through open debate.

Whilst the law of the street can never replace the rule of law, protest allows us to recall governments to their duties and obligations. With the right to protest and the right to free speech comes the power to be heard, to share in the decisions that shape our lives. That is why protest is so important.