Peter Fahy, chief constable of Manchester and a senior member of the Association of Chief Police Officers (Acpo) yesterday responded to criticisms made by the Guardian journalist Martin Kettle which he felt, portrayed the police as unreformed and obdurate, writes Matt Evans.
What caught my eye however was the bold assertion by Fahy that the introduction of elected police and crime commissioners was indicative of a shift of power and, in his words, ‘a return to Peel’s original ideal of policing being fundamentally locally accountable rather than an arm of state control as happens in much of the rest of the world’.
- See Statewatch for more on the Special Rapporteur’s full report HERE.
Acpo has of course itself been the subject of a significant degree of criticism around its own accountability both internally, amongst rank and file officers, and externally even by bodies seen as traditionally supportive of it, such as the Home Affairs Select Committee over the PC Mark Kennedy scandal. The fact that it resisted for some time being subject to any Freedom of Information requests may not have helped its perception as an elite, unaccountable body (nor indeed the fact that it is registered as a limited private company for tax purposes).
But what of the main claim of Fahy, that there is some sort of seismic shift going on in the way the police operate (beyond centrally driven statistical performance targets being sidelined) and who they in fact answer to?
Less than a couple of weeks ago Maina Kiai, the United Nations Special Rapporteur on the right to freedom of peaceful assembly and of association, reported on a wide number of policing practices in the UK. Scathing would be an understatement. He described certain areas of current police practice as ‘indiscriminate’, ‘disproportionate’ and in contravention of human rights standards.
In respect of Mark Kennedy matter, Kiai called for ‘a judge-led public inquiry’. In doing so he said he was:
‘Deeply concerned with the use of embedded undercover police officers in groups that are non-violent and which exercise their democratic rights to protest and take peaceful direct action. The case of Mark Kennedy and other undercover officers is shocking as the groups in question were not engaged in criminal activities. The duration of this infiltration, and the resultant trauma and suspicion it has caused, are unacceptable in a democracy. It is a clear violation of basic rights protected under the Human Rights Act, and more generally under international law, such as the right to privacy.’
A number of political activists, legal monitoring groups and civil society organisations related their concerns to Kiai over undercover operations and the lack of accountability and redress available, something exemplified by last week’s ruling by the High Court that significant amounts of a court case concerning sexual relations between undercover officers and protesters would be held in secret (see HERE).
Referring to the case, the Special Rapporteur said that ‘there’s been no attention given to the victims in this’ and that he was appalled by the judge’s widely reported remarks that it was like ‘James Bond’.
Protest is healthy in a democracy
Kiai said ‘protest is actually good for a country… . It may disrupt traffic or some shopkeepers but protest is good for society.’
Asked about the need for individuals to request permission from the police to protest in or nearby the Houses of Parliament, he said that ‘any regime that requests authorisation [to protest] is wrong’. By-laws passed last year to prevent the use of sleeping equipment such as tents being used in a significant area in and around Parliament Square were (in his view) ‘disproportionate’.
‘If there is camping in a place that’s a public space, and it’s not disruptive to traffic or people, I can’t see a problem with that,’ Kiai said. However, ‘the difficulty comes with a mass protest… [and] I suspect in the next three years there will be a lot more of this as the crunch bites’.
Whilst Kiai acknowledged that freedom of association is ‘largely enjoyed’ in the UK, there were ‘a number of issues of concern’, including the proscription under anti-terrorism powers of civil society organisations (for example, representing Tamil, Kurdish or Baloch communities) and the banking restrictions placed on many Muslim charities.
Restrictive laws governing trade unions were also criticised, especially the use of a blacklist of union members in the construction industry, something that has attracted widespread interest not least because the actor Ricky Tomlinson (and one of the ‘Shrewsbury Two’) has been such a vociferous campaigner for greater transparency.
Kettling, intelligence-gathering and databases
Kiai was also highly critical of a number of other UK police practices including kettling, widespread intelligence-gathering at protests, and the ‘broad’ definition of ‘domestic extremism’ and public order legislation which permits the banning of protests.
Although both domestic and European courts have ruled in favour of the use of kettling by UK police forces (specifically, London’s Metropolitan Police), Kiai heavily criticised the practice, saying that it is ‘detrimental to the exercise of the right to freedom of peaceful assembly due to its indiscriminate and disproportionate nature’.
He noted that it ‘undeniably has a powerful chilling effect on the exercise of freedom of peaceful assembly, and I was informed of many people who refrained from exercising their right to freedom of peaceful assembly for fear of being kettled.’
Kettling came to widespread public prominence following protests against the April 2009 meeting of the G20, during which hundreds of people were held for hours with no access to toilets, water, or medical care. It was also widely used during the student protests that erupted in 2010, with thousands of people on a number of occasions trapped for hours in freezing weather. Following one incident, a doctor who gave medical assistance to a number of protesters ‘warned that police risk repeating a Hillsborough-type tragedy if they continue with [the] tactics’.
The use of kettling for intelligence gathering purposes where those kettled are forced to disclose their name and address as they leave, was also condemned in light of the fact that it ‘s only real purposes was seemingly to intimidate those who wished to engage in free peaceful assembly.
The gathering of personal information from and photographs of vast numbers of people during protests has been the subject of several challenges in the Courts with mixed results. In July 2010 the courts ruled that the filming and photographing of people attending a meeting of the London No Borders group had not been proved to be lawful and that the police had failed to provide any evidence that they were pursuing a ‘legitimate aim’ (Court rules against unauthorised police surveillance, Institute of Race Relations, 29 July 2010). However, more recently the High Court said that the collection by police of extensive amounts of information on John Catt, who regularly attends anti-arms trade protests in Brighton and sketches the participants, did not infringe his human rights. (Catt v Commissioner of the Police of the Metropolis  EWHC 1471).
Kiai said that whilst he recognised that:
‘The police have a legitimate duty to ensure that anarchy and violence are not part of protests; however, when it is unclear what the databases and intelligence on peaceful protesters are for, this only exacerbates tension and mistrust and can be counter-productive in fostering human rights.’
Police liaison officers
Striking a more positive note, Kiai welcomed ‘the establishment and use of protest liaison police officers [PLOs],’ but sounded a note of caution: ‘it is necessary to separate the liaison function from intelligence gathering, which negates the goodwill and good relations that police liaison officers can foster by fuelling mistrust among protesters.’
These concerns seem to have some validity with recent reports of PLOs in Sussex going to a woman’s house and ‘grilling her on her membership of UK Uncut and about future protests’.
The elusiveness of police accountability
If certain sections of the police are to be seen as more than just an ‘arm of the state’ then they need to be accountable for more than just their use of public resources or even individual or force misconduct – upholding the right to freedom of association and to engage in legitimate protest – and in doing so resisting the political and corporate pressure to do otherwise – seems like a good place to start.
Jon is editor of the Justice Gap. He is a freelance journalist. Jon's books include The First Miscarriage of Justice (Waterside Press, 2014), The Justice Gap (LAG, 2009) and People Power (Daily Telegraph/LawPack, 2008). Jon is a journalism lecturer at Winchester University and a visiting senior fellow in access to justice at the University of Lincoln. He is twice winner of the Bar Council's journalism award (2015 and 2005) and is shortlisted for this year's Criminal Justice Alliance's journalism award