The last three months of 2014 in Britain saw a number of high-profile protests. On 19 October, around 100 activists from Occupy Democracy made an attempt to establish a protest camp in Parliament Square. Some of the demonstrators brought tarpaulins, which the police decided were “structures for the purpose of facilitating sleeping”, and therefore banned in the square by the Police Reform and Social Responsibility Act 2011, and these were confiscated. Activists were outnumbered by police, threatened with arrest if they did not leave, and several were forcibly removed.
Protesters returned on 21 October, at which time fewer police were visible but around a dozen vans were held in reserve. The grass was sealed with a two metre high fence, and all protesters excluded.
There was a student demonstration for free education from Malet Street in Bloomsbury on 19 November with between 4,000 and 10,000 protesters, making it the largest student protest since 2011. Press coverage focussed on the supposed violence of the demonstrators, principally consisting of a group of between 200 and 400 students escaping from the main body of the demonstration and setting off on various breakaway marches. During one of these micro-demonstrations, protesters attempted to remove the barricades which were still up in Parliament Square.
On 22 November, around 100 supporters of Occupy Democracy made a further attempt to enter Parliament Square, where they were again prevented from staying.
On the evening of 26 November, between one and two thousand people took part in a protest at the US embassy at Grosvenor Square to condemn the decision not to prosecute a police officer Darren Wilson for shooting dead black teenager Michael Brown in Ferguson, Missouri. An impromptu march then headed South, via Oxford Street, with some demonstrators eventually reaching Parliament and temporarily tearing down the barriers there.
On 3 and 6 December, further student protests took place at a number of university towns, including Brighton where demonstrators were photographed holding placards in the style of book covers: Kropotkin’s Mutual Aid, Wolstonecraft’s A Vindication of the Rights of Woman, and Fanon’s The Wretched of the Earth. The most significant of the assemblies was at Warwick University, where on 3 December the police were called by the University, police drew a taser and were filmed using CS spray against students. The images helped to spark a “Cops off Campus” protest of around five hundred students on 6 December and an occupation.
On 10 December, 76 people were arrested at a 600-strong “die-in” at the Westfield shopping centre in Shepherds Bush to mark the death of Eric Garner, a black man who had died during an arrest in New York in July.
The return of student protest in particular invited comparisons with the demonstration of 10 November 2010 when in the first significant march against the Coalition government some 50,000 university and further education students and lecturers had protested against increases to student fees and the removal of the EMA grant for 16 to 18 year olds. Around 2000 of the students entered Millbank Tower which housed the Conservative Party’s campaign headquarters. They hung banners from its roof, smashed panes of glass at the front of the building, and it took several hours for the police to gain control of the building. When the National Union of Students distanced itself from the occupation, activists – some of whom had worked together in occupations around Gaza in 2009 and the 2010 closure of the Philosophy Department at Middlesex – announced further protests for 24 November and 9 December, the evening when Parliament was due to consider increasing tuition fees.
Over the next four weeks of demonstrations many students were contained behind police lines and others subject to repeated police charges. Baton strikes were aimed at the heads and bodies of demonstrators. The highest profile victim of the charges was Alfie Meadows, who required surgery after being struck on the head by a police baton. Meadows was then prosecuted, unsuccessfully, for violent disorder.
While protesters may have hoped that events in London in winter 2010-11 would indicate the first blossoms of a “British spring”, in the image of events in Tunisia and Egypt that winter, as important in retrospect has been the hostile response of the police, which has continued, even to protests for very different causes.
For about a year and a half prior to Millbank, the message of the police authorities had been that they were adopting a facilitative approach towards public protest. After the death of Ian Tomlinson at an anti-G20 rally on 1 April 2009, much was made of a supposed British model in which policing was by consent. This shift was given a visible expression at that year’s Climate Camp gathering at Blackheath in August. The police very publicly eschewed the surveillance and intrusive searches that the camp’s supporters had had to endure in previous years.
In the aftermath of the Millbank occupation, the Metropolitan Police Commissioner, Sir Paul Stephenson criticised his own force for having failed to accurately estimate protesters’ numbers or predict that politicians might be targeted, “it must have been an awful time for the people trying to go about their daily business in those buildings. I feel terribly sorry that they have had to go through what must have been quite a traumatic experience. We are determined to make sure that sort of thing does not happen again on our streets.”
Two days before further student demonstrations planned for the first anniversary of Millbank, the LBC radio station reported that police officers had told them they would use baton rounds, like rubber bullets, to deal with any unruly protesters.
“Public revulsion about Ian Tomlinson’s death meant there was a brief window of opportunity in 2009 to challenge heavy-handed police tactics and their negative depictions of most protesters as inherently violent. That window was closed after the student demonstrations”, recalls Kevin Blowe of the Network for Police Monitoring (Netpol), “and it was locked after the 2011 riots”.
Over the following three years, there have been successive press stories about the police being armed with increasingly high tech weaponry to be used against either rioters or demonstrators. As part of the preparations for the London Olympics, the Ministry of Defence revealed that ships on the Thames had been equipped with “Long Range Acoustic Devices”, or as they were also known “sonic cannon”, devices which disrupt protests by emitting piercing, high pitched sounds at high decibels and can cause lasting deafness.
The demonstrators who negotiated with senior police officers the route of the Counter Olympics Networks protest, the largest event protesting against the London Olympics, insisted on assurances that the sonic cannon would not be used against their event, and while the officers would not give any guarantees, it was clear from their response that they viewed the devices with a mixture of anxiety and derision. “We are here to protect public order”, the officers said, “That … LRAD is in no way conducive to keeping people safe.”
The Home Office’s 2014 acquisition of water cannon shows a similar pattern with parts of the state welcoming the opportunities to use a wider set of powers against demonstrators, and other parts disowning any actual intention to employ the weapons. The Association of Chief Police Officers produced in January 2014 a briefing paper justifying the purchase. The document acknowledges the risks associated with the cannon which “are capable of causing serious injury or even death”, but justifies their use for disorder such as “the student protests of 2010 where specific locations were targeted”. “The mere presence of water cannon”, ACPO maintains, “can have a deterrent effect and experience from Northern Ireland demonstrates that water cannon are often deployed without being employed.”
Another feature of the past five years has been the Metropolitan Police’s frequent use of kettling, a tactic which requires officers to surround demonstrators in a small spaces, allowing small numbers out after only a lengthy delay. Kettling predates the Coalition but under the Coalition it has become a regular feature of policing, no longer restricted to a few protesters associated with “disreputable” causes rather it has become the force’s principal way of dealing with protest in all its forms.
Kettled demonstrators are held for hours at a time without food, water, or opportunities to go to the toilet. The police’s selection of who to kettle is necessarily arbitrary and, for its dissuasive effect, the tactic requires a rule that no-one may leave the kettle once it has begun. The most high profile case to challenge the use of kettling, Austin v UK, began as an action by two people who were caught for 7 hours in the first kettle in 2001. One was a young mother, who was unable to collect her 11 month old baby from the childminder. The second was a member of the public who had been caught up, without warning and entirely by surprise, in the kettle. He was not a demonstrator but in London on work business when he found police lines closing around him. Both asked to leave the kettle but were refused.
One of the establishment’s criticisms of the police after Millbank was that they had failed to gather sufficient intelligence so as to predict the student numbers. The National Union of Students had told the police to expect 20,000 people, while the true figure turned out to be a little 50,000. The police were also criticised for failing to predict the occupation of Millbank Tower. It would be possible to construct an upbeat narratives of British policing in which this failure has been remedied by a general shift towards a new intelligence-based approach, Intelligence-Led Policing (“ILP”), in which the gathering of information pre-empts a problem by detecting and disrupting criminal activity. There is however a category error in the extension from employing intelligence gathering as a step towards preventing (for example) money-laundering to using it to prevent organised political protest. The former prevents conduct which is wholly negative; the latter leaves protesters without a voice, and the wrong which they have gathered to oppose is left substantially in place.
An example of how ILP has been mis-used in the context of protest is supplied by the High Court case of Mengesha v Commissioner of Police of the Metropolis. On the afternoon of the 30 November 2011 public sector protests, around 100 demonstrators were held in a kettle near London’s Panton Street. Police officers informed them that they would be entitled to leave the kettle only once they had been photographed and given the officers their names dates of birth and addresses. Without that information, the police officers appeared to believe, they were entitled to hold and detain members of the public indefinitely. The High Court had no difficulty in finding that the conduct of the police had been wholly unlawful.
Another recurring theme of the policing of protest under the Coalition has been the frequent arrest of up to several hundred demonstrators at a time, followed generally by the selective charging of only a small proportion of those arrested. Protests disrupted in this manner have included the cyclists’ Critical Mass protest of July 2012 coinciding with the opening night of the Olympics, at which 182 people were arrested. The cyclists were then held in buses overnight before being given bail conditions the following morning. Just nine people were eventually charged and of them only four were convicted.
A 2011 UK Uncut protest at Fortnum & Mason saw 145 arrests but only 40 people were charged and 10 were convicted.
At a protest against the English Defence League in autumn 2013, over 300 anti-fascist demonstrators – some from the nascent Anti-Fascist Network, others local youth from Muslim backgrounds in East London – were held in kettles lasting for many hours and arrested. Just two were charged and only one was convicted.
Those held in these mass arrests have been subject to pre-charge bail conditions. The experience of protesters is that these have tended to become more onerous during the term of the present government, with the trend being to exclude protesters not merely from similar protests for the duration of their bail conditions but also from places which have some – often vague – connection to the location or nature of their protest. So, those arrested in 2013 in protests against the English Defence League were required not to be present on any demonstration where a member of the EDL might be present, which is not as easy as it might first sound given that the EDL has a history of infiltrating trade union and left-wing events. Protesters were also excluded for the duration of their bail conditions from the City of Westminster. Some readers of this piece will no doubt be able to draw the boundaries of Westminster from memory, but I doubt most people who live or work in London could do so.
Protesters arrested at a Cops off Campus demonstration in December 2013 were excluded for the duration of their police bail conditions from the central London campus area where the protests had taken place. The editor of the London Student newspaper Oscar Webb was banned from attending any protests or demonstrations anywhere around the University campus, even in his capacity as a reporter. Other students were prevented from being in groups of more than four people. The President of the University of London Union Michael Chessum was required to refrain from “engag[ing] in protest on any University Campus and not within half a mile boundary of any university”, a proposal that was clearly intended to curtail protests rather than prevent crime or ensuring Chessum’s attendance at court.
The deadline for charges to be brought in the Magistrates Court is six months from the original offence. While protesters are typically arrested on the demonstration itself, charging decisions tend to be made near the end of the six-month deadline. This delay is capable of justification since it gives the state the maximum opportunity to gather all the information required to make a charging decision. In all legal proceedings, criminal or civil, litigants tend to issue near to the deadline rather than as soon as an act occurs. But the delay maximises the inconvenience faced by the protester, who knows that if they breach their conditions they will probably be arrested and held in custody before appearing before the courts.
By participating in the occupation of Millbank Tower, students made themselves vulnerable to being charged under the Public Order Act 1986, but which is the appropriate charge is not straightforward. The first three offences under the Act are Riot, Violent Disorder and Affray, carrying maximum sentences of 10 years, 5 years and 3 years respectively. The statute provides similar definitions of each, making each charge potentially appropriate where there has been conduct so that a hypothetical bystander might fear for their safety.
As researchers from Defend the Right to Protest have shown in a recent briefing (http://www.defendtherighttoprotest.org/new-dtrtp-briefing-threats-to-freedom-of-assembly-and-association/), the original Law Commission report which recommended the creation of the offence envisaged a crime of great seriousness as would happen, for example, if a crowd of people threw a series of missiles with the intention of causing injury. In subsequent guidance on charging produced by the Crown Prosecution Service, this intention was subtly altered, and prosecutors were guided to charge protesters with violent demonstrators if there was serious disorder at a public event and any missiles of any description were thrown. At the Gaza protests in 2010, demonstrators faced charges of violent disorder for being within crowds from which empty water bottles or placards sticks had been thrown.
Overcharging has the practical result that the trials take place in the Crown Court rather than the magistrates’ courts, with the greater delays of a lengthier, more formal system, and the risk of a longer jail term if the defendants are found guilty.
A further consequence of over-charging was that juries were put on notice that demonstrators faced lengthy sentences and this (as well as genuine shock when jurors were confronted with images of police violence prior to the supposed disorder) may have contributed to the very high acquittal rate after the student protests, with 18 of the 19 defendants who pleaded not guilty to violent disorder being acquitted.
In most of the high profile political prosecutions, around half of the demonstrators have been acquitted and in some cases, the acquittal rate has been higher still. There were 126 arrests made by police in 2013 of anti-fracking protesters objecting to a Cuadrilla exploration site in Balcombe in West Sussex in 2013. Ninety defendants faced 114 charges but only 29 of the charges resulted in convictions.
At Balcombe, rather than overcharging as such, the Sussex police attempted a different approach of reviving antique criminal charges, in this case, the anti-picketing offence of “watching and besetting”: “A person commits an offence who, with a view to compelling another person to abstain from doing or to do any act which that person has a legal right to do … wrongfully and without legal authority … watches or besets the house or other place where that person resides, works, carries on business or happens to be…”
Had this strategy proved effective if it might have gone some way towards making the act of protest outside any workplace unlawful. Instead, the relative obscurity of the charge may have contributed to the high acquittal rate: the courts were unwilling to countenance an extension of the legislative prohibition against protest.
Yet if protesters have largely avoided criminal convictions; in the civil courts, the decisions of the judiciary have generally narrowed rather broadened the rights of demonstrators. In the main St Paul’s case, the Mayor Commonalty and Citizens of London v Samede, the Court of Appeal found that “while the protesters’ Article 10 and 11 rights”, that is their rights under the European Convention on Human Rights to freedom of expression and association, “are undoubtedly engaged, it is very difficult to see how they could ever prevail against the will of the landowner, when they are continuously and exclusively occupying public land.”
A year earlier, in Hall and Others v Mayor of London, the most significant case involving protesters’ occupation of Parliament Square, the Court ruled that a permanent protest camp outside Parliament could not be sustained. The Court of Appeal accepted the findings of the High Court that the Democracy Now protesters were preventing others from demonstrating outside Parliament, and that if Parliament Square was left in the unfettered control of the Mayor of London, other protesters would have greater access to it than they had at the time.
The Court insisted that evictions were justifiable as a step towards a wider freedom to protest: “It is important that the Democracy Village members are able to express their views through their encampment on [Parliament Square Green], just opposite the Houses of Parliament. However … it is equally important to all the other people who wish to demonstrate on PSG that the Democracy Village is removed.”
The consequence of the Mayor of London’s zeal to protect the rights of protesters can be seen in the establishment of the barriers that met the Occupy Democracy protesters, accompanied by signs warning protesters that any demonstration might damage the grass. Claudia Grigg Edo was there with Occupy. “It was pretty clear to all of us that the fact the ‘keep off the grass’ cordons were put up just before our openly-publicised 9-day occupation was not a coincidence. On one occasion, when one of fellow protesters asked what they were for, one policeman said ‘to keep you lot out’.” Fences threaten to become the default response of the police to any protests by any demonstrators in the vicinity of Parliament.
Demonstrators who were schooled by the experience of marching against New Labour will tell you that the principle factor determining the response of the police to a protest is usually a political assessment of the public support for the protesters’ cause. So, TUC marches against austerity, or marches against the Iraq War, will be subject to light-touch policing, since the police know that the causes themselves have the support of either an actual majority of people or of a sufficiently large minority of people so that it would be inadvisable to confront them. By contrast, anarchist opponents of the capitalist system or those perceived as sympathetic to terrorism may expect a much more intrusive style of policing.
Protesters who are shaped by the experience of protesting under the Coalition government tend to see things differently. In their explanation, it is not the degree of support for the cause which is decisive, but the tactics adopted by protesters. The paradigm example is something like the Balcombe protests, which had very wide support within the local area, with the Women’s Institute and church groups attending. The protesters even had their own a knitting circle. And yet, for all their local legitimacy, demonstrators were still subject to the full rigour of a police action in which any protest was treated as criminal.
Asked to explain why there has been a shift towards greater hostility on the part of the police in the face of protesters, Kevin Blowe of Netpol begins his explanation with a shift towards more diverse and mobile tactics by the demonstrators. There has been a modest but definite shift he argues against the demand for large “A to B” marches in the style of the anti-war movement that reached its peak in 2003. Instead, protesters are seeking to employ a range of tactics: ranging from at one point the occupation of spaces, to at the other extreme, rapid movement from place to place, with the intention above all of keeping away from police lines or the risk of being kettled. “If two million people was not enough to change the politicians’ minds, it followed that protesters needed to do something different. With social media, protests have become easier to organise and harder to police.”
“Many of the infamous examples of mass arrests”, Blowe suggests, “have happened when the police encountered a new social movement which they did not understand. The arrests at Fortnum & Mason seem to have been about the police needing a better understanding of UK Uncut. The police were unfamiliar with who belonged to what networks, and so they pulled in people in large numbers. It was the same with Critical Mass and the Anti-Fascist Network. The police were looking – in vain – to see if they could find out who the leaders were.”
Tom Wainwright, a barrister who has represented several of those charged in protest cases, including Zak King, Caroline Lucas MP and a number the Critical Mass and Balcombe defendants, has a similar analysis. “The police view is that a legitimate protest is a bunch of people waving placard sticks. As far as they are concerned if you put people in a pen, some distance away from their considered target, you have struck a proportionate balance between people’s right to protest and the business’ right to carry on doing regardless whatever it was already doing. But people are fed up with ineffective protests which do nothing to stop an action. Protesters are experimenting with occupations, lockdowns, and actions intended to have a real effect. The police regard any expansion of protest as inherently problematic.”
Reviewing the last four years a whole; while it can certainly happen that hostile policing has the effect of only encouraging further protests, the experience of some activists has been that the struggles are leading rather to fatigue and the new activists who brought their optimism to the various protests have then retreated, demoralised by the hostility of the state.
There is no single statute at work here, no authoritarian legislation masquerading Blair- or Cameron-style as reform, no single policy that could be opposed by a well-targeted petition, but the incremental way in which values have changed and an extra dose of iron has entered into the soul of the state.