Dan Kieran
Page 19
Quickly dubbed a ‘snooper’s charter’, RIPA sets the parameters for surveillance powers to monitor electronic data. It was sold as a way to combat Internet crime, and more specifically paedophiles. Fair enough, you may think, perhaps we need the security services to monitor every single thing we use the Internet for. But the Act also lists the public bodies that have access to these powers, and they include every local council and job centre in the country, the Chief Inspector of Schools, the Post Office, the Personal Investment Authority, any of Her Majesty’s forces and intelligence services along with every government department, the Food Standards Agency and, bizarrely, the Egg Marketing Board - just as long as they suspect a threat to national security, are preventing or detecting crime or disorder, are in fear of something that might give rise to issues for public safety, are protecting public health, or simply ‘(c)... safeguarding the economic well-being of the United Kingdom’. We may have become blase about CCTV camcras but at least we can see when they’re filming us.
7. The Anti-Social Behaviour Act 2003 and the Crime and Disorder Act 1998
As we have seen, this legislation criminalizes people for being naked in their own home, howling like a wolf, putting up Christmas decorations and feeding the birds. It also creates a two-tier criminal justice system where certain people are given prison sentences for behaviour that is perfectly legal for the rest of us. Like standing on a street corner to wait for someone, or swearing.
Section 57 of the ASBA amends the definition of ‘assembly’ in the 1986 Public Order Act from twenty people down to two to help the government target groups of young people more effectively. According to Gareth, ‘This is what the government will tend to do. They take existing legislation and amend it. How can two people possibly be considered an assembly? The 1986 Public Order Act combined with the 1994 Criminal Justice Act set the parameters for the criminalization of protest by groups of over twenty people with “trespassery assemblies”. Back then everyone saw it as a way of criminalizing protest and said, “How can only twenty people be considered an assembly?” Now it’s gone down to two!’
Section 30 of the ASBA introduced dispersal orders and curfew powers. The former were designed to clear kids with hoodies from street corners, while the latter are blanket powers to stop anyone under sixteen being outside after nine p.m. Liberty received lots of angry emails and letters for defending the basic right of people not to be picked up by the police simply because they are under sixteen.
6. The Criminal Justice Act 1994 and 2003
The Act designed to stop people having free parties in the countryside and take away the right to demonstrate back in the mid-nineties has now been amended to further reduce our right to protest. Gareth sees this as a trend that undermines our entire criminal justice system. ‘If you’re talking about Britain and the idea of what Britishness means in terms of our legal framework, then you’ve got to understand the theme that goes all the way back to the Magna Carta. It’s called “the golden thread” and it’s the idea of the presumption of innocence, which under this government is simply being taken away. Tony Blair is quite open about it. “The criminal justice system is reminiscent of Dickens’ time” was what he said. Well, what he means is that people had some kind of process then. He sees the criminal justice system as something that is regulatory, the means by which you process people. So the perspective is, “Here are these people who we do not like for various reasons so we need to find a way to lock them up”. If you read government writing on this, it’s shameless. They actually say this is a process that needs updating. Apparently we need a shiny new system that gets rid of some of these time-consuming and costly trials.’
Once you’ve been arrested, Sections 9 and 10 of the Criminal Justice Act of 2003 start to kick in. These sections are the culmination of several changes that happened between 1999 and 2003, which have relaxed the rules on DNA retention. Previously your DNA could only be retained if you had committed a certain kind of offence, which most people feel is justified; but DNA retention has now been amended so that today anyone who is arrested has their DNA permanently on record. There are millions of people on the DNA database. It is estimated that up to 50,000 of them are children who have never been charged or cautioned with any criminal offence. But again the government says, ‘Don’t worry, you can ask to have your DNA removed.’ But asking for permission for something, as we have seen with the government’s exclusion zone around Parliament, is not the same as having it as an inalienable right. As if to prove the government’s hollow promise, the police have since released guidelines saying that people should not, as a rule, be removed from the DNA database except in ‘exceptional cases’.
According to genewatch.org, 5 per cent of British people are currently on the DNA database, which gives us the largest database of DNA in the world. Austria comes in second, but with only 1 per cent of its population. Worryingly, in conjunction with the Observer newspaper, genewatch revealed that stored DNA samples are being used without the consent of the people involved to study the genetics of the male Y-chromosome. One terrifying conclusion from that is that they are looking for genetic evidence for criminality. No doubt the government will rely on their new double argument, ‘If you’ve nothing to hide then you’ve nothing to fear’ and ‘Don’t worry, we won’t use it for that’, to make us all feel secure. Both, however, arc starting to sound a little hollow.
5. The Terrorism Act 2006
Parts of this Act clearly have merit. For instance, before the TA 2006 it was not a criminal offence for anyone to travel to a terrorist training camp with a view to causing murder and mayhem in Britain on their return. However, it also carries the offence of the ‘encouragement/ glorification’ of terrorism, which makes an assumption that even Gareth, a criminal lawyer, cannot understand. ‘When the government was coming out with the justification for introducing the new offence of “encouragement” of terrorism the Prime Minister went on the Today programme on Radio 4. He said, “You can’t just have people coming over here encouraging people to go off and kill other people, it just should not be permitted.” But it isn’t permitted because it’s an offence called “incitement to kill” that we’ve had since the nineteenth century, and it already carries life imprisonment! This new legislation is a totally different thing, and Blair’s a barrister so you can be sure he knows that. As a lawyer I find it shameless the way the government do this. If I was listening to that and I didn’t know about the existing law that already criminalizes what he’s talking about then I’d think, “Yeah, damn right, they shouldn’t be allowed to do that.” And I’d support it. It’s infuriating. The government’s argument structure is to say “Proposition A: Terrorism is bad” - something that of course no-one is going to disagree with. Then they offer up “Answer B” as the way in which they think we should deal with it. Therefore, in their eyes, if you disagree with B you must also disagree with A, that terrorism is bad.’
And even the wording of the new law is unclear, as Gareth explained. ‘One of the daft things about glorification/encouragement of terrorism is that no-one knows what it actually means. Despite hours and hours of parliamentary debate they still couldn’t work it out. My assessment of it is a “subjective recklessness test”. Now I’m a criminal lawyer so I know what a subjective recklessness test is. I’m still not sure, but that’s my best guess. Now how is anyone in the world supposed to know what is or isn t a criminal offence if even a criminal lawyer is confused? And as soon as people began to point out that this term was also dependent on the definition of terrorism in the 2000 TA, the government had to start a whole new review into the definition of terrorism. The definition of it in the 2000 TA no longer worked with all the legislation they’d put in. It’s so badly thought out it even criminalizes someone who escapes persecution in North Korea, comes to Britain and says, “Maybe it’s a good idea to have a regime change in North Korea.”,39
4. The Prevention of Terrorism Act 2005
This creates what are becoming known as ‘secret
courts’, but that makes the false assumption by association that it is actually a ‘court’ with all the rights we associate with our legal process. It is no such thing. If you find yourself under one of the control orders outlined in the PTA 2005 you will be subjected to a criminal process where neither you nor your lawyer is allowed to know what evidence there is against you. And the people who do know what charges you face are not allowed to tell you. Meanwhile, you have to live under house arrest. So much for the golden thread.
3. The Terrorism Act 2000
The TA 2000 is at number three because of the legal term ‘proscription’ and the Section 44 stop and search.
The Act was brought in before 9/11 and allowed certain political organizations to be criminalized when Republican splinter groups emerged after the Good Friday Agreement. Proscription creates a special class of criminality. It is designed to make it a criminal offence for anyone to have anything to do with a terrorist group. That sounds fair enough, doesn’t it? The problem with proscription is its breadth. Firstly, it’s not only an offence to have anything to do with these organizations, items of clothing that support a ‘proscribed’ organization have also been criminalized. When this is coupled with the Terrorism Act of 2006, which extends the grounds for proscription so that you don’t have to be a violent political group, just one that encourages, promotes or glorifies terrorism, it means you could face prosecution for just going to a meeting featuring a speaker from a proscribed organization. Terrorism laws carry serious criminal punishments and they can now be broken by something as innocuous as wearing a T-shirt. Wearing a T-shirt is not equatable with someone calling for others to commit acts of terrorism; it’s simply criminalizing speech you don’t agree with. As Prasanth wrote on the banner he now has a criminal record for holding in Parliament Square, ‘If you don’t believe in freedom of expression for people you despise then you don’t believe in it at all.’
Section 44 of the Terrorism Act allows the police to stop and search anyone within a designated area and detain them without suspecting that they are about to commit a crime. These designated areas were supposed to last for a month and to be used at times when a terrorist threat was most likely — during the Queen’s speech, for example, or the Labour Party Conference. The police, however, have had a rolling authorization for the entire Metropolitan Police District every month since 2002. So anyone in London since that time could be stopped and searched without the police having to give any justification. Section 44 was famously used on Walter Wolfgang when he shouted ‘Rubbish!’ at Jack Straw during a speech on Iraq. According to Gareth, ‘This government has been rightly accused of politicization of the police and nowhere is that expression more symbolic than the arrest of Walter Wolfgang for speaking up at a Labour Party Conference.’
The use of Section 44 to attack protest, however, has been far more aggressive and authoritarian than even the most ardent critics of the government could have feared. According to Home Office figures, in 2003/04 29,407 searches were made using Section 44 powers but only five arrests were made in connection with terrorism. That’s a 0.02 per cent success rate. Is it possible that the police could have been using the time they wasted on Section 44s to combat terrorism more effectively? Judging by the way stop and search was used against protesters at RAF Fairford during the Iraq war, you could be forgiven for thinking that Parliament got the name of the Act wrong. The ‘Anti-Protest Act’ would have described it more accurately.
The campaign of harassment against demonstrators carried out by the police at RAF Fairford was so long and appalling that I’ll pick out just a few highlights to prove beyond doubt that S44 stop and search has been used to stifle demonstrations and political dissent. In my view these incidents alone ask enough terrifying questions about the way the police misuse anti-terrorist powers against those who oppose the government to warrant some kind of inquiry. One protester, Charlie Lysons, who was attending his first ever demonstration because he was so outraged by the Iraq war, wrote about the way he was treated by the police afterwards. ‘I now feel intimidated from carrying out lawful protest,’ he said, ‘and for the same reasons I do not feel like making any kind of official complaint.’40
Even a thirteen-year-old girl walking to her cello lesson on a cycle lane near the base was subjected to a S44 stop and search under the Terrorist Act. Another girl, Isabelle Ellis-Cockroft, eleven years old this time, had her bike searched, again under S44. In total, 995 stop and searches were used against the protesters under S44 of the TA 2000 and Section 60 of the Criminal Justice and Public Order Act 1994. Eighty-nine of the Section 44 searches were carried out on the same twenty-six people. One woman was stopped and searched eleven times on the same day in a policy the protesters began to realize was clearly designed to demoralize them. Juliet McBride was walking on her own when she was searched by eight officers who also confiscated a tape recorder she was using to record what was going on, and refused to let her friends come to her aid. Kerstine Rogers was with her eight-year-old daughter when they were detained by police; they told her she would be searched only to release her forty-five minutes later. At RAF Welford, where other demonstrations were being held against the Iraq war, police took banners and cameras from a protester under the authority of Section 19 of the Police and Criminal Evidence Act of 1984, even though this is only legal for items found while searching premises. Juliet McBride again, who was singled out by police as one of the main protesters, was stopped while driving to the ‘Flowers for Fairford’ demonstration. She was held for one and a half hours while her car was searched and arrested for breaching bail conditions that were entirely made up. She was later arrested for a breach of the peace when she tried to enter one of the camps demonstrators had set up entirely legally outside the base. She wasn’t charged with a criminal offence for any of these supposed acts of illegality. Unsurprisingly, not a single one of the 995 searches the protesters were subjected to resulted in any kind of terrorist conviction.
Perhaps even more shocking than any of that, though, is the tale of a bus journey from London to Fairford for that ‘Flowers for Fairford’ demonstration on 22 March 2003. The police were not taking any chances with the peace demonstrators: there were up to a thousand officers on duty, many of whom were in riot gear. The day before, 21 March, David Blunkett, the then Home Secretary, had stated that the Terrorism Act 2000 was not being used to prevent protests at RAF Fairford, but on the way up from London three coaches of protesters - CND members, Quakers, journalists and a samba band - were pulled off the road ten miles from Fairford into a blockade of seventy police officers, cars and vans. All the protesters were taken off the coaches in pairs, searched and filmed. Food, scarves and helmets were confiscated by the police, and after two hours of waiting the protesters were allowed back on to their coaches. They presumed they would now be allowed to attend the march, but just before they were about to move off a policeman boarded each coach and told the protesters that a senior officer had decided they might cause a breach of the peace (despite having taken away any items they considered dangerous, including a clown mask, during the two-hour search) so they would now all be escorted by the police back down to London. They were not allowed to stop at any stage of the journey, even to go to the toilet. One of the protesters later commented, ‘The return journey to London was organized by the police to make us look like terrorists. A convoy' of police accompanied our buses and the motorways were scaled off to the public. Even the roundabouts leading towards and away from the motorway were sealed off.’ So much, then, for living in a country where the police can’t just go around harassing and detaining people simply because they don’t agree with government policy.
2. The Serious Organised Crime and Police Act 2005
‘Ironically for a democracy,’ Gareth pointed out while we were discussing SOCPA, ‘apart from Ministry of Defence land and some Crown land, the place in Britain where there are greatest restrictions on your right to protest is the centre of government.’
SOCPA is an interesting example of the way the government will take an Act that deals with something most people agree is a good idea, in this case the creation of a new crime-fighting agency designed to deal with drug traffickers and organized crime, only to sling in a few things that erode civil liberties for good measure in the knowledge that there won’t be time for proper debate. Section 132, which outlines the protest exclusion zone, as you’ve probably guessed by now, is my personal favourite, but SOCPA also includes Section 110 which makes all offences arrestable. In 2004 a Criminal Justice White Paper found that the three parameters the police used when arresting someone - a non-arrestable offence, an arrestable offence and a serious arrestable offence - were too confusing to deal with. Apparendy the police couldn’t work out whether or not someone was breaking the law under these terms. Presumably this did not relate to obvious crimes like muggings, assault, murder, fraud, shoplifting, burglary and so on, but probably did cause problems when people were engaged in the act of protest, in which field increasingly creative methods were being deployed to get round the various bits of authoritarian legislation designed to stifle dissent. To solve this tricky conundrum, the government decided just to make anything an arrestable offence. Thanks to Section 110, you can now be arrested by a policeman and carted off to a police cell for walking down the road minding your own business. Or, in the case of Matthew the picnicker from chapter 2, for lying face down in the grass and not moving.
The police did add something called ‘necessity’ to the Act which every policeman and woman has to apply every single time he or she considers making an arrest. In human rights terms, that means in each individual situation they have to decide whether their actions will contravene Article 5 (the right to liberty) and Article 8 (the right to privacy). At the European Court of Human Rights there are hundred-page documents deliberating those kinds of things, so expecting a police officer fresh out of training school to be able to make those distinctions, without any guidance from above because their previous arresting policy, which already dealt with those issues, was scrapped for being ‘too complicated’, seems a little naive. Once again we have a piece of legislation that has terrifying civil liberties implications and doesn’t actually do what it was supposed to do in the first place. I certainly hope you enjoyed living in a country where you couldn’t just get arrested and dragged off in a police van without any justification, because you don’t live in that country any more.