Protest in designated areas under
SOCPA
101. We deal with protest around Parliament, which
is a designated area under SOCPA, in the next Chapter. In this
section, we consider other designated sites under section 128
of the Act, such as nuclear facilities.
102. Many witnesses were concerned that there should
not be a blanket ban on protest in designated areas.[189]
Dr Michael Hamilton and Dr Neil Jarman pointed out that such
bans:
... risk being disproportionate because (1) they
preclude a timely assessment of the specific facts of a given
case, (2) their geographical boundaries may go beyond that which
could routinely be said to raise concerns which relate to "legitimate
aims" (such as national security), and (3) their reach often
extends to entirely innocuous activities.[190]
103. A number of witnesses were unconvinced that
criminalising trespass on nuclear and designated facilities was
proportionate, nor that it added anything to existing criminal
law.[191] Justice criticised
the fact that section 128 permitted the Secretary of State to
designate any site in the interests of national security:
It is a perfect example of what we have indicated
post the Human Rights Act of legislation not containing any specific
safeguards in relation to necessity. The common argument of Parliamentary
draftsmen is of course any powers have to be exercised consistently
with Convention rights and interpreted consistently with Convention
rights, but there is nothing in section 128 which requires the
Secretary of State to consider whether it is necessary to designate
a site.[192]
104. Some witnesses advocated the repeal of section
128 of SOCPA, suggesting that the Public Order Act 1986 and other
existing law was sufficient.[193]
As Milan Rai said:
I cannot see why we should be making walking
around peacefully a criminal activity, wherever it is taking place.
If someone is taking implements to blow something up or whatever,
we will capture that under other laws. Simply walking around
peacefully, which is what that law is about, I do not see why
we should have a law banning that.[194]
105. On the other hand, the Association of Electricity
Producers and Drax Power Limited suggested that it would be proportionate
to extend section 128 SOCPA to include coal-fired power stations,
which were not automatically covered.[195]
106. When our predecessor Committee scrutinised the
Serious Organised Crime and Police Bill during its passage through
Parliament, it expressed doubts about whether the provision would,
in practice, be operated in a manner compatible with the ECHR
or that appropriate safeguards were in place to ensure compatibility,
short of challenge before the courts.[196]
107. We wrote to the Minister on 13 November 2008
to ask him whether section 128 remains necessary in relation to
protected and designated sites and why general public order or
criminal law was insufficient to deal with protest around protected
and/or designated sites. We received his reply very shortly before
we agreed this Report.[197]
108. Many of the concerns which we expressed during
the passage of the Bill which became the Serious Organised Crime
and Police Act 2005 have been borne out in practice: we do not
have confidence that section 128 has been implemented in a manner
compatible with Convention rights, or that appropriate safeguards
are in place to secure compatibility. We recommend that section
128(3)(c) be amended to permit the Home Secretary to designate
sites on the grounds of national security only where it is necessary
to do so. An amendment to section 128, which we may wish to table
for debate in Parliament when an appropriate opportunity arises,
is suggested below:
Offence of trespassing: designation of sites
To move the following clause:
"(1) Section 128 of the Serious Organised
Crime and Police Act 2005 (c. 15) is amended as follows.
(2) In subsection (3)(c), after "appropriate"
the words "and necessary" are inserted.".
Cyber protest
109. Several witnesses drew attention to the problems
that could be caused by forms of internet or email protest. David
Taylor MP told us that he received approximately 6,500 emails
in advance of a debate in the House of Commons on the expansion
of Heathrow Airport, which seriously interfered with his work
and led to the loss of constituency emails.[198]
Huntingdon Life Sciences also has experience of internet protest
and noted that there was often an international dimension, which
made it more difficult for the police to intervene effectively.[199]
A number of witnesses, including the Minister, agreed that the
best way to deal with this issue was to use the existing criminal
law to deal with underlying criminal behaviour.[200]
We recommend that the police should be proactive in using
the existing criminal law to prosecute protestors who are carrying
out threatening or abusive protest via the internet. Further,
we recommend that the Home Office review the existing law to ensure
that it adequately protects both the rights of protestors and
those who are targeted by such protests.
125 Ev 146. Back
126
Ev 88. Back
127
Ev 89. Back
128
Ev 169. Back
129
Ev 170. Back
130
Ev 149, para. 3: Including the offence under section 5 Public
Order Act 1986, the Serious Organised Crime and Police Act 2005,
the Protection from Harassment Act 1997, the Terrorism Act 2000
and the Anti-Social Behaviour Act 2003. Back
131
Ev 149, para. 3. Examples of cases falling within the third category
included R (Singh) v Chief Constable of the West Midlands [2006]
EWCA Civ 1888 (dispersal of protestors under Anti-Social Behaviour
Act 2003) and R (Gillan) v Commissioner of Police for the Metropolis
[2006] UKHL 12. Back
132
Ev 149. Back
133
Q 56. Back
134
Ev 196. Back
135
Ev 151 and 162 Back
136
Q 308. Back
137
Ev 142. Back
138
Ev 143. Back
139
Qq 271 & 276. Back
140
E.g. Q 45. Back
141
See also above, Chapter 2, para. 38. Back
142
Q 59. Back
143
Ev 84, 158, para. 21 and Ev 171. Back
144
Ev 158, para. 21. Back
145
Q 248. Back
146
Q 250. Back
147
Q 315. Back
148
Q 301. Back
149
Q 30. Back
150
Q 301. Back
151
Q 130. Back
152
E.g. Ev 77, 99, 106, 107, 108, 155 and 203. Back
153
Ev 184. Back
154
OSCE/ODIHR, Guidelines on Freedom of Peaceful Assembly, para.
77. Back
155
Ev 175. Back
156
Ev 103 and 107. Back
157
Ev 155 and 169. Back
158
The protestor and journalist challenged the police's use of their
counter-terrorism powers: R (Gillan) v Metropolitan Police Commissioner
[2006] UKHL 12. Back
159
Ev 107 and 162. Back
160
Ev 103. Back
161
Ev 178 and 188. Back
162
Ev 178. Back
163
Ev 147. Back
164
Q 269. Back
165
Ev 107. Back
166
Qq 296 & 329. Back
167
Qq 342 & 344. Back
168
National Policing Improvement Agency, Practice Advice on Stop
and Search in Relation to Terrorism, 2008, pp. 11 and 13. Back
169
[2006] UKHL 12. Back
170
National Policing Improvement Agency, p. 14. Back
171
National Policing Improvement Agency, p.17. Back
172
National Policing Improvement Agency, p. 23. Back
173
National Policing Improvement Agency, p.19. Back
174
Inserting new s. 58A into the Terrorism Act 2000. Back
175
Explanatory Notes, para. 233. Back
176
R v K [2008] EWCA Crim 185. Back
177
Section 58 Terrorism Act 2000. The Court of Appeal held (at paras
13-14) that it is not legitimate under section 58 for the Crown
to seek to demonstrate, by reference to extrinsic evidence, that
a document, innocuous on its face (such as a copy of the London
A-Z), is intended to be used for the purpose of committing or
preparing a terrorist act. Back
178
Ev 88, 94, 135 and 188. Back
179
Ev 88. Back
180
Ev 88, 94 and 146. Back
181
Q 59. Back
182
Ev 139. Back
183
Ev 87. Back
184
Practice Direction to Part 25 Civil Procedure Rules, para. 3.4. Back
185
Practice Direction to Part 25 Civil Procedure Rules, para. 4.3. Back
186
Civil Procedure Rules, r. 39.2. Back
187
Practice Direction to Part 39 Civil Procedure Rules, para. 1.5. Back
188
Practice Direction to Part 39 Civil Procedure Rules, para. 1.8. Back
189
Ev 185, 196 and 203. Back
190
Ev 185. Back
191
Ev 77, 97, 107 and 155. Back
192
Q 51. Back
193
Qq 53-54. Back
194
Q 166. Back
195
Ev 92 and 135. Back
196
See in particular Fourth Report of Session 2004-05, Scrutiny:
First Progress Report, HL Paper 26, HC 224 and Eighth Report of
Session 2004-05, Scrutiny: Fourth Progress Report, HL Paper 60,
HC 388, especially paras 2.68-2.69. Back
197
Ev 67-69. Back
198
Ev 194. Back
199
Q 108. Back
200
Qq 108, 162 & 331. Back