The authoritarian Games: why Lord Coe can’t simply arrest anti-Olympic protesters in advance

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Would you buy a used Olympics from this man?

Assistant Commissioner Chris Allison (aka Assistant Commissioner Clouseau) was quoted in Sunday’s Observer promising to anticipate criminality at this year’s Games by pre-emptively arresting those he thought likely to be guilty of crime or anti-social behaviour. While the proposals sound Orwellian (and here’s a clue – when things sound Orwellian, usually that’s because they are Orwellian), Asst Cmr Allison was keen to calm the anxieties of the good readers of that newspaper. Bona fide protesters, he promised, should not anticipate prosecution for thought crimes, but would be allowed to protest:

“If you want to protest, speak to us beforehand so we can manage your right to peacefully and lawfully protest. But if as an individual we think you are going to disrupt the Games in some way, then I am telling you that we will take whatever action we can within the law to prevent you from disrupting the Games, because you don’t have the right to do it.”

Along with the very deliberate leaking of the huge numbers of police officers and soldiers on duty at the games, and the careful spreading of the word of the variety of military technologies that will be available to the authorities, this latest announcement is best seen as yet another attempt to cause anxiety among potential protesters and to isolate the activists from their periphery. Read in this manner, the important point about the message is the initial “threat” of police action rather than the partial  “reassurance” that protesters will not in fact be targeted. It is the threat which most of us are supposed to hear and internalise.

In the context of Allison’s language, and in particular his final words, “you don’t have the right” [to disrupt the Games], it is worth recalling that when the police have tried to forestall the rights of protesters to disrupt events, as often as not, the courts have found that it is the police who were acting unlawfully.

The leading case is Laporte, R (on the application of) v Gloucestershire Constabulary & Ors [2004] UKHRR 484, a case which was brought after police intelligence identified that 120 protesters were travelling to RAF Fairford in Gloucestershire some of them (in the words of the subsequent court report) “hard-line protesters … intent on being present at that demonstration”. The demonstrators were pre-emptively arrested, i.e. held in their coaches, and forcibly turned back by police officers.

Not having had access to solicitors prior to their arrest, they could only bring a claim after their return to London for judicial review and damages.

The protesters said that the actions of the police were unlawful, and prevented them from attending the demonstration infringed their freedom of peaceful assembly under Article 11 of the European Convention on Human Rights and their freedom of expression under Article 10.

The High Court agreed, Lord Justice May ruling, “the claimant’s enforced return on the coach to London was not lawful because (a) there was no immediately apprehended breach of the peace by her sufficient to justify even transitory detention, (b) detention on the coach for two and a half hours went far beyond anything which could conceivably constitute transitory detention such as I have described, and (c) even if there had been, the circumstances and length of the detention on the coach were wholly disproportionate to the apprehended breach of the peace.”

The decision was then upheld by the Court of Appeal.

This is not to say that pre-emptive arrests could never be justified: but the High Court’s emphasis on “immediately apprehended” breaches of the peace is the key. A police officer is of course allowed to arrest a person just before they throw a weapon. A police officer is not, by contrast, allowed to arrest a person days or hours in advance, pre-emptively to anticipate a hypothetical disorder.

As the Court of Appeal put it, “The greater the distance and the greater the time involved, the more important it is to decide whether preventive action is really necessary and, if it is necessary, the more restrained the action taken should usually be as there will be time for further action if the action initially taken does not deter.”

If, for example, the power of arrest was used against an ordinary demonstrator with no plans to cause violence, as part of a blanket policy which was tantamount to preventing all protests in the vicinity of the Olympic Games, the action of the police officers would be unlawful. In principle, their force and (in all likelihood) they personally could be liable in a subsequent claim for damages.

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