For years it has been common practice for protesters held in a kettle (police containment) to be forced to submit to police filming and/or provide their details as a condition of leaving. There have been countless incidents in which protesters who have tried (lawfully) to refuse these demands have been threatened with arrest, or told they could not leave the kettle.
This should now change, as the High Court has today ruled 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.
Lord Justice Moses criticised police practice in no uncertain terms. He stated,
It is unacceptable that a civilian photographer on instruction from the police should be entitled to obtain photographs for investigation and crime investigation purposes…as the price for leaving a containment. Although the common law has sanctioned containment it has done so in only restricted circumstances.
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.
The case was taken by Susannah Mengesha, who had attended a demonstration called by Occupy/UKUncut in Picadilly after a trade union march in 2011. Susannah was there as a legal observer, and became caught in a kettle the police imposed after protesters had moved to the headquarters of Xstrata, a mining corporation in nearby Panton Street.
After a lengthy period of time, the police containment manager decided it was no longer likely that there would be an ‘imminent breach of the peace’ and began a ‘controlled dispersal’. Protesters were funneled through lines of police officers to a dispersal point where they were stopped and searched then allowed to leave. Before reaching this point, however, people were forced to undergo close-up filming by police cameramen, and were told they must provide a name and address or face arrest.
Both Susannah and other legal observers recorded that the police had told protesters they were using section 50 of the Police Reform Act. This gives police powers to demand details on threat of arrest, where they reasonably believe a person has been engaging in anti-social behaviour.
In court, the police denied using this power, presumably aware of the difficulties in asserting that a peaceful protest equated to anti-social behaviour. Instead they tried to defend their actions by claiming that protesters gave their name and address and submitted to filming voluntarily. A police video was given to the judges to evidence that Susannah had complied freely – but Lord Justice Moses considered that “the video showed the contrary”.
Susannah has stated that she is ‘very happy’ with the judgement, which should change the way the police operate. She has also forced the police to remove any record of her attendance that night from their databases. She said,
I am deeply concerned by the increasing criminalisation of protest. I do not accept that by choosing to express political dissent people automatically volunteer away their rights to personal privacy and freedoms.
Freedom of protest is under relentless attack from the state. Under the new legal aid reforms, protest law judicial review cases such as mine, which are usually the last refuge against oppressive state behaviour, would not have been possible.