The All Parliamentary Group on Democracy and the Constitution have published
their report on their inquiry into police conduct at the Clapham Vigil and Bristol Protests and the implications for the Police Crime Sentencing and Courts Bill. It is scathing.
On the Clapham vigil:
The MPS [Metropolitan Police Service] displayed a misunderstanding of the nature of the right to protest. In her oral evidence AC Rolfe told the APPG [All Party Parliamentary Group]:
There is no obligation to facilitate protest in domestic law. It is solely in European case law
87. This statement displays a fundamental misunderstanding of the nature of human rights law. The effect of the Human Rights Act is to make the European Court of Human Rights’ case law relevant to the interpretation of human rights in domestic law. Until told otherwise by a domestic court, the MPS should, therefore, abide by the relevant European caselaw.
88. The MPS understanding of the duty to facilitate was, in the words of AC Rolfe:
[The police have] no obligation to facilitate protest. We may consider police action if it appears that others would disrupt a protest.
89. This is not correct. The duty to facilitate is to “take reasonable and appropriate measures to enable lawful demonstrations to proceed peacefully, with the participants kept safe.”32 This goes further than mere protection from counter protestors and has particular relevance in the context of the pandemic. In the APPG’s view the MPS had a duty to, at the very least, consider whether police could facilitate the Clapham event in a way that minimised the risk of transmission. [my emphasis]
91. The All Tiers Regulations allowed the MPS to interfere with the right in accordance with the law. The question, therefore, was whether such an intervention was necessary and proportionate for the protection of public health. We have seen no evidence that the MPS properly grappled with this question. The consideration seems to have gone no further than the assertion that “there was a public health emergency”. There appears to have been no analysis of the specific risks posed by the Clapham event (both at the proposal stage and during the event itself). We saw no evidence that the MPS took into account the Chief Medical Officer’s comments that the Black Lives Matter protests during summer 2020 had not caused a significant increase in transmission, the evidence behind those comments, or considered what actions police could take to allow the event to go ahead while mitigating the risk of transmission. Indeed, it appears (from both the evidence of RTS and AC Rolfe) that the MPS considered it entirely the responsibility of RTS [Reclaim These Streets] to work out a way to hold the event in a covid-safe manner. The MPS appear to have considered their only options to be “don’t interfere” (the approach for the first six hours) and “intervene to disperse the gathering” (the approach after 18:30). In reality there was a far greater range of options open to MPS, none of which appear to have been thought through. [my emphasis]
94. The MPS’ approach was unfair and inappropriate from both a principled and operational perspective.
100. ...In oral evidence AC Rolfe maintained that Parliament had placed a complete ban on gatherings like the Clapham event and that the MPS had no role in deciding whether or not it should be permitted. Aside from the legal problems with this position, it appears AC Rolfe did not appreciate that the MPS was, in effect, taking a decision about whether the event could proceed lawfully or, at the very least, without substantial legal sanction. This lack of awareness is concerning. The MPS could, at any point, have given clarity to RTS and attendees about what it would consider a “reasonable excuse” in the context of the proposed and actual Clapham event. Whether fairly or not, Parliament had clearly delegated power to police (and, by extension, the courts) to determine what constitutes a “reasonable excuse” in any given situation. The MPS had a responsibility to give clarity about how that power would be exercised. In the case of the Clapham event, the MPS failed in this duty. [my emphasis]
101. We are concerned that the MPS position on the effect of the All Tiers Regulations appears to have changed more than once... It would certainly not have been possible for a citizen to understand under what circumstances they would not be penalised for attending a protest. Mr Justice Holgate’s decision in Leigh clearly left the door open for the MPS to specify under what conditions they would consider a protest not prohibited/facilitate a protest. The MPS’ failure to do this is a failure both in respect of the MPS’ duty to facilitate protest and its duty to provide clarity and transparency to citizens. [my emphasis]
121. Given that the stated reason for intervention was the reduction in social distancing, there appears to have been no consideration of whether enforcement action would increase rather than reduce the problem. This should have been part of a proportionality assessment. Indeed, it appears that, once it became clear that police intervention was serving to provoke the crowd (and this further compromise social distancing), police escalated their response.
On the Bristol protests:
128. Avon and Somerset Constabulary (“A&SC”) appear to have adopted the same interpretation of the All Tiers Regulations as the MPS and thus made the same errors of law.
135. It appears, therefore, that A&SC’s mistaken approach to the law prevented A&SC from following best practice by engaging with those organising demonstrations. We have seen no evidence that A&SC considered the positive obligation to facilitate a safe and peaceful protest.
138. A&SC’s presumption of illegality appears to have provoked larger protests than there would otherwise have been. As one witness put it, “People wouldn’t have turned out in such numbers if such a fundamental right wasn’t being threatened”.57 There is evidence to suggest that A&SC’s approach caused, or at least exacerbated, some of the violence. We note that, after 29 March (when A&SC considered protest to be permitted and acted accordingly) there was a marked decrease in the levels of violence.58 While correlation is not necessarily evidence of causation, when combined with the evidence above, we conclude that the actions of A&SC increased the risk of violence. [my emphasis]
146. “Revenge policing” was mentioned by both compendious sets of evidence dealing with the Bristol events.68 We find this particularly troubling. It was suggested that A&SC took a more aggressive approach to gatherings on 23 and 26 March in retaliation for the damage inflicted on Bridewell Police Station and the injuries to officers on 21 March. This would, if true, be an unlawful abuse of power. The impression of “revenge policing” is compounded by the excessive measures used by A&SC in their investigations of offences allegedly committed during the events of 19-26 March. In particular, we are concerned that police tactics in relation to the wrongful detention of Katie McGoran and Grace Hart. The actions of officers in those situations appear calculated to coerce and intimidate. [my emphasis]
Some background on that "wrongful detention". Katie McGoran attended the protest on 21 March but left before any of the violence started. Five days later, four plain-clothes officers, including
one dressed as a postman, "burst into her room, handcuffed her and arrested her for “violent disorder."" She was only wearing a te-shirt and dressing gown at the time and had to try and dress herself while handcuffed and in front of 5 strange men. They then admitted they should have had a female police officer with them, and after comparing her to the woman they were after conceded they'd got the wrong person, retracted the arrest and removed her handcuffs, leaving her terrified.
Similar tactics were used for Grace Hart, a 16 year old, who didn't even attend the protests. A police officer
dressed as a postman tried to gain entry and when she got suspicious and tried to close the door he burst through with at least 3 other officers holding tasers. It appears they were after a flatmate, who wasn't home at the time.
If you remember, at the time the press was full of stories about the 20 police officers who were supposedly injured, with 2 taken to hospital with broken bones and one with a punctured lung. Many people were outraged and used this as justification for the police tactics used against the protestors These claims were
later retracted by the police. What we didn't see much of was the injuries to protestors:
150. We have received evidence that at least 62 people were injured as a result of police cations [sic]. 22 of those injured received head wounds and 7 required hospitalisation.71
While, as set out above, there were a number of instances during the Bristol events in which the use of force was both justified and proportionate, we are satisfied that there were also instances in which the force used was excessive. In particular:
(a) The use of force against identified journalists, legal observers, and medics was in the course of unjustified enforcement action and therefore excessive. We note that at least one journalist was seriously injured.72
(b) The use of dogs and baton strikes against protestors who were not engaging in violence.73 Given that protestors not engaging in violence do not present a threat to police officers and there appears to have been no assessment of the public health impacts of this use of force, it cannot be considered proportionate and is therefore excessive.
(c) We note at least one instance of baton strikes to the head of an individual who appears to be injured.74
(d) The use of strikes with the thin edge of square riot shields (“blading”) against seated or prone individuals.75 (This is dealt with below).
(e) Forcing demonstrators into unsafe areas including a two lane highway (which was not closed in advance). An action cannot, in our view, be proportionate if it creates a similar risk to public safety. We have seen no evidence that a risk assessment was carried out in advance of this action or that any actions were taken to mitigate the risk. [my emphasis]
There follows several paragraphs (151-154) about blading which I recommend reading. For those not aware, blading is where riot police use the edge of their shields to attack protestors, causing cuts which can be quite deep and very painful. The paragraphs describe how the evidence submitted by the police state that "shield strikes", as the police term them, are a "legitimate tactic" that is taught as part of police training. They note that "in using the narrow edge of the shield, it concentrates the force applied and heightens the risk of serious injury" (para 153) and say that while they've not been able to find any evidence that blading is endorsed as described by the officer giving evidence, if it is, that endorsement needs to be retracted and the guidance rewritten. They end the section by saying,
In our view there are instances in which the use of blading during the Bristol events was unjustified, entirely excessive, and may amount to criminal offences against the person. (para 154)
The implications for the Police, Crime, Sentencing and Courts Bill are clearly stated,
162. It was striking that,in both the Clapham and Bristol events, the police use of coercive powers appear to have exacerbated tensions and increased the risk of violence. Indeed, in many cases, enforcement of (what the police believed to be) the prohibition on protest may have actually increased the risk to public health.
163. This supports the consensus amongst the independent experts who gave evidence that attempting to suppress protest is not only undemocratic but operationally counterproductive. Since 2009 it has been established that the best way to ensure individuals exercise their rights in a safe and peaceful manner is for police to engage with protest organisers and facilitate a peaceful demonstration.
164. We took particular note of Lord Paddick’s evidence that the majority of constabularies, when consulted by HMICFRS, did not indicate that additional powers were required...
165. Given this we must question the necessity of much of Part 3 of the PCSC Bill. Indeed, the events at Clapham and Bristol indicate that use of the public order powers proposed in the bill will be equally likely to increase the risk of disorder and violence as reduce it. [my emphasis].
169. Power must be matched by accountability. It is our view that there are insufficient avenues of accountability in respect of police public order powers as they currently stand. The PCSC Bill proposes to expand those powers further without an equivalent expansion of accountability. This is inevitably problematic.
They end by proposing a new clause for the Bill calling on the Secretary of State to produce a Code for the Policing of Protest and to have clauses 55-61 removed entirely. I hope these recommendations are heeded but I won't be holding my breath.