Written Evidence
Letter to the Chair of the Committee from Rt Hon
David Hanson MP, Minister of State, Home Office, dated 13 January
2009
I wrote to you on 24 October with an update to the
Government's planned response to the report Demonstrating Respect
for Rights? Follow-up by the Joint Committee on Human
Rights (JCHR) which was published on 14 July 2009. I now write
to provide you with a detailed response to the recommendations
contained within your Report. This response builds on the HMIC
Report Adapting to Protest, Nurturing the British Model of
Policing published on 24 November, and the Government's position
on the policing of protest set out in the Policing White Paper,
Protecting the Public: Supporting the Police to Succeed published
on 2 December 2009. It also incorporates progress in repealing
relevant SOCPA provisions, the conclusion of our consultation
on Section 5 of the Public Order Act and our further detailed
views on the use of civil injunctions.
The Government welcomes the Joint Committee Report,
together with the other Reviews into policing and protest published
this year. The government agrees that there are some key lessons
to be learnt from G20 and other recent policing operations, and
is committed to working with the police and other stakeholders
to ensure those lessons are learnt.
As we set out in the Policing White Paper, the public
have the right to expect the highest standards of policing at
big public events and we have to support every officer in delivering
those high standards, recognising the impact that a single image
or incident can have on public confidence. Forthcoming events,
notably the Olympics, make this all the more pressing.
We agree with the HMIC Report that the policing of
protest needs to be built on the British model of policing, and
that the key principles of the British model need to be reflected
in the updated guidance and training that the Association of Chief
Police Officers (ACPO) and the National Policing Improvement Agency
(NPIA) are already developing. These in turn need to be underpinned
by a Home Office Code of Practice that sets both the strategic
framework and supports common standards across forces.
We have, in the White Paper, pledged to work with
the police and the public to ensure that the recommendations of
the HMIC report are properly acted upon and act as an agent for
change. A programme of work which we and the police have undertaken
to deliver by summer 2010 has accordingly been put into place.
This programme of work will directly address a number of the
Joint Committee's recommendations. However, our response also
recognises the progress the police have already made in learning
the lessons from G20 which in itself illustrates the police's
proactive commitment to constantly improve its service to the
public
The Government looks forward to engaging with the
Joint Committee on this programme of work beginning with your
conference on policing and protest at the end of this month.
GOVERNMENT RESPONSE TO THE COMMITTEE'S RECOMMENDATIONS
The Committee made 23 conclusions and recommendations.
Some of these recommendations have been grouped together for
this response.
DIALOGUE BETWEEN POLICE AND PROTESTERS
1. For "no surprise" policing of protests
to be effective, both protesters and police must share information.
Whilst this happens in many cases, it is clear that at least some
aspects of communication at the G20 protests were very poor. Mutual
distrust was apparent and the police and protesters seemed to
have different expectations of what the dialogue should be about
and how it should proceed. This ineffective communication led
to frustration on both sides and, possibly, to the police taking
a more heavy handed approach to the Climate Camp protest than
would otherwise have been the case. (Paragraph 13).
2. We were particularly disappointed to hear that
the Climate Camp Legal Team should find it so difficult even to
make contact with appropriate officers of the City of London and
Metropolitan Police forces to discuss their protest. We recommend
that there should be a nominated point of contact in every police
force, whom protesters can contact in advance of protests taking
place should they wish to do so. Police forces should take steps
to advertise their point of contact and to explain why dialogue
can be beneficial to all parties. (Paragraph 14).
The Government agrees that good communication between
the police and protesters is the key to `no surprises' policing
of public protest events. This is clearly articulated in the
Policing White Paper published on 2 December
which sets out clear principles
for the policing of public protests. The HMIC Report Adapting
to Protest, Nurturing the British Model of Policing also highlighted
the need for the police to develop effective communication strategies
which will deliver improvement in communication between the police
and key stakeholders before, during and after public order policing
events.
ACPO is already working on revised guidance and training
to deliver this and the police have begun to put into practice
ideas such as nominating designated contact points for communicating
with protesters as seen at a number of the English Defence League
demonstrations in the summer. The use of technology to communicate
with protesters is also being utilised, as demonstrated by the
MPS who used Bluetooth messaging as a means to communicate with
protesters during the Tamil protests, explaining the policing
approach and stating their intention not to disperse protesters
and to allow the protest to continue.
However, we must not lose sight of the fact that,
in the interest of fostering good relationships, communication
with protesters must be a priority for all police officers,
not just designated individuals.
3. In our earlier report we recommended that there
should be a "quick and cost free system for resolving complaints
and disputes in advance of protests taking place". The Government
noted our recommendation and said it would "feed it into
the current HMIC Review into G20". We see merit in using
independent negotiators to facilitate dialogue between police
and protesters, where the parties encounter difficulties in communicating
directly. Such negotiators could also help resolve disputes,
as we previously recommended. We recommend that the Government
consider this matter with relevant parties such as the Independent
Police Complaints Commission and HM Inspectorate of Constabulary.
(Paragraph 16).
Both the Government and the police are keen to consider
any approach which will facilitate dialogue between police and
protesters, build trust and provide an effective means of resolving
complaints and disputes. Good, effective communications is key
to this and the Government agrees with HMIC that public order
command training should be enhanced to provide explicit guidance
to officers on communication strategies before, during and after
public order policing events. We are pleased to report that a
revised Bronze command course was piloted in October, a Silver
command course in December and a Gold command course is under
development.
On the issue of resolving disputes more generally,
the Government has, in the White Paper, stated its belief that
"in most cases speedy and informal efforts by front line
officers to put things right are preferable to lengthy, formal
procedures". The Government has also given a clear undertaking
to "support the IPCC by streamlining the police complaints
process and introducing a wider range of potential resolutions."
CONTAINMENT
4. We are disappointed that the Keeping
the Peace manual on public order had not been amended
by the time of the G20 protests to reflect the judgement in Austin.
In our view, the containment section of the manual at the time
of the G20 protests was deficient in a number of respects and
would have provided little concrete guidance to officers making
strategic or operational decisions on the day. We are therefore
pleased to hear that ACPO is proposing to revise Keeping the
Peace and we would be grateful for the opportunity to receive
a draft of the relevant section so that we can assist ACPO in
getting it right. (Paragraph 27).
5. In our view, containment can be a useful and
lawful tactic in some circumstances but it must be used in a proportionate
manner with due regard to the human rights of the people contained.
This requires the police's careful consideration in advance
during the protest of whether the tactic overall remains necessary
and proportionate. It also requires individual officers policing
the perimeter of the contained area to consider whether, in an
individual case, it is appropriate to maintain that cordon for
that individual, given his or her particular circumstances. It
is this second aspect of containment - respecting the rights of
individuals being contained - which we consider that the Metropolitan
Police did not give sufficient weight to during the G20 protests.
In our view, it would be a disproportionate and unlawful response
to cordon a group of people and operate a blanket ban on individuals
leaving the contained area, as this fails to consider whether
individual circumstances require a different response. (Paragraph
28).
6. For the tactic of containment to be operated
in a manner which complies with human rights, we consider that
the following issues must be addressed:
· Containment
should only be used where it is necessary and proportionate to
do so generally and in relation to each individual contained.
· It
should be imposed for the minimum amount of time necessary.
· It
should be regularly reviewed during each containment in order
to see whether it remains necessary and proportionate.
· There
must be effective, clear and timely communication between the
police and those within the containment.
· The
police should establish a means of considering individual circumstances
and identifying who can be let out: the presumption should be
that people should be allowed to leave where it is possible for
them to do so.
· Contained
individuals should be given access to facilities such as toilets,
medical assistance and water.
We note that the HMIC report on the G20 protests
includes a similar list and we recommend that all these matters
should be addressed in the revised ACPO guidance. (Paragraph 29).
The Government accepts the Committee's comments on
the issue of containment. Both the Government and police are
very clear that containment, in keeping with the House of Lords
decision in Austin, must be proportionate, used in good
faith and enforced for no longer than is necessary. Further,
all efforts must be made to provide adequate services to those
contained.
The Government supports HMIC's recommendations on
containment as set out in Adapting to protest Part 1 - no
surprises, a clear release plan, easy access to information, clear
signposting and awareness and recognition of the UK press card.
We also support Part 2 findings which consider that the
key to achieving proportionate and appropriate use of containment
is good intelligence and information about protest crowds and
crowd dynamics, together with the ability to communicate to them
- both before and during containment - the reasons for the tactic
and how it will be managed. Police use of both technology and
face to face communication will be important in this area.
The revised ACPO manual of guidance is due to be
finalised by summer 2010. It will set out common standards, tactics
and techniques in the field of public order. The Policing White
Paper stressed ACPO's commitment for this guidance to be public
facing. The Joint Committee together with a number of other stakeholders
will be consulted on the guidance in the spring.
It is important to stress that ACPO has already produced
interim guidance on the use and management of containment and
the Metropolitan Police has established the role of Bronze Cordon
to ensure the correct deployment and management of containment
should the tactic become necessary.
MEDIA REPORTING OF THE BUILD UP TO THE G20
PROTESTS
7. We have had the opportunity to review the transcripts
of the press briefings provided by Commanders Broadhurst and O'Brien
and they are consistent with the oral evidence we heard from AC
Allison. The briefings clearly set out the police's concerns
that the G20 summit would create some difficult public order challenges,
without forecasting violence or buildings being stormed and without
giving the impression that the police were relishing the opportunity
for a fight. Consequently, we conclude that the main responsibility
for talking up the prospect of violence and severe disruption
rests with the media, not the police. (Paragraph 33).
8. AC Allison said that the police had responded
to exaggerated press comment about the protests by briefing the
Chairman of the Metropolitan Police Authority to undertake a round
of interviews to argue that the prospect of violence had been
over-emphasised. We welcome this approach, but suggest that the
Metropolitan Police could have done more to respond to exaggerated
and distorted press coverage of its briefings. We note the conclusions
of the parliamentary observers' report that "aspects of the
media strategy employed by the police prior to the demonstrations
may have contributed to escalating expectations of violence".
We recommend that the Metropolitan Police review how the media
reported its briefings on the G20 protests with a view to ensuring
that exaggerated and distorted reporting can be countered with
a quicker and more effective and authoritative response in future.
(Paragraph 34).
The Government is pleased that the Committee recognises
that police press briefings were not responsible for talking up
the prospect of violence
The Government supports the conclusions of the HMIC
report that the police need to develop more effective media communication
strategies to ensure an accurate understanding of the police operational
approach and style.
Good, open and transparent communication between
the police and the media should in itself also reduce the risk
of the kind of exaggerated and distorted reporting noted by the
Committee. The Government also has a role in supporting such
transparent communication.
The Metropolitan Police has already taken a number
of positive steps in this area, including the integrated community
strategy developed during the policing of the Climate Camp in
August 2009, increased dialogue with the National Union of Journalists
(NUJ) and inclusion of the role of the media in operational briefings.
TREATMENT OF JOURNALISTS
9. We reiterate our recommendation that police
forces must do more to ensure that officers fully appreciate the
role of the media and do not subject journalists to mistreatment
of any sort while they are covering protests. (Paragraph 36).
Both the Government and police agree that good, open
and transparent communication between the police and the media
is important in all areas of policing and a key element in upholding
our democratic traditions. These principles are already set out
in ACPO guidance and will be reinforced and refined in the updated
Keeping the Peace Manual in line with the findings from
HMIC's Adapting to Protest report which highlighted the
need for "awareness and recognition of the UK press card
by officers on cordons, to identify legitimate members of the
press and ensure application of associated ACPO guidelines."
IDENTIFICATION OF OFFICERS
10. Correct identification of police officers
is crucial to ensuring that the police are accountable for their
actions, including the extent to which they respect the human
rights of the people they deal with. We recommend that it should
be a legal requirement for police officers to wear identification
numbers while on duty or to identify themselves when asked. We
note that Baroness Miller of Chilthorne Domer has tabled an amendment
to the Policing and Crime Bill on this issue and look forward
to this issue being explored further in that context. (Paragraph
39).
As the Committee recognises, the Government, ACPO,
the Metropolitan Police, the IPCC and HMIC are unanimous in their
view that uniformed police officers should be identifiable at
all times by their shoulder identification numbers. We agree
with the Committee that being able to identify any uniformed officer
who is performing their duty is crucial to ensuring that the police
are accountable to the public for their actions.
As the Joint Committee notes, we explored the specific
issue of making the wearing of identification numbers a legal
requirement in the context of the amendment tabled by Baroness
Miller to the Policing and Crime Bill last session. As the Committee
will be aware, police officers of any rank are subject to the
standards of professional behaviour set out in the Police (Conduct)
Regulations 2008. These standards reflect the expectations that
the police service and the public have of how police officers
should behave. Any breach of those standards may lead to disciplinary
action being taken. An officer deliberately removing his or her
identification to avoid being held accountable is likely to be
in breach of the standards expected and therefore liable to be
dealt with under the disciplinary arrangements.
As HMIC found in its report Adapting to Protest,
"aside from the well publicised examples, having examined
hours of CCTV and press footage, it is clear that the overwhelming
majority of officers on the same video footage can be seen displaying
their identification correctly." The Government therefore
considers current Police (Conduct) Regulations sufficient to
ensure compliance and remains unconvinced of the need to make
failure to display identification numerals an explicit legal requirement.
We have however flagged in the recent Policing White
Paper that display of numerals is one of the areas requiring particular
attention in revised training and guidance. Additionally, ACPO
has produced interim guidance reinforcing the importance of the
identification of officers and the Metropolitan Police Service
has included specific reference in all briefing for the need for
officers to display numerals.
HUMAN RIGHTS AWARENESS
11. We remain concerned that there is a long way
to go before promoting and protecting human rights is central
to police policy, training and operations. We hope to return
to this issue before the end of this Parliament to check on the
progress being made by ACPO. (Paragraph 40).
As stated in the Policing White Paper, the Government
is clear that a human rights based approach to the policing of
protest is needed in order to comply with the law, support the
founding principles of policing, and crucially to provide a practical
framework for the police to resolve any area of conflict.
The Government notes the Committee's concerns and
those raised by HMIC about the inadequate training and the low
level of understanding of the human rights obligations of the
police under the Human Rights Act 1988. The government supports
the revision of ACPO training to provide officers with a clear
understanding of the use of police powers that can apply in a
public order situation, including explicit training on the facilitation
of peaceful protest as the starting point, and human rights obligations
on the police. In this context, we are pleased to note that
the NPIA has arranged a 'Training the Trainers' course for January
2010, which will include training on human rights and public order
legislation. Further, the Home Office will issue a Code of Practice
on public order to ensure revised guidance is followed by all
forces, and to reaffirm the key principles around balancing rights
and using proportionate force in public order policing.
PROTEST AROUND PARLIAMENT
12. The careful management of the Tamil protest
in our view struck an appropriate balance between protecting the
right of the Tamils to protest in Parliament Square and the need
to maintain access to parliament for Members, staff and the public.
The protest did cause inconvenience to some, but this is a small
price to pay for living in a vibrant democracy. We welcome AC
Allison's realistic attitude towards the enforceability of the
SOCPA provisions but are concerned at the ambiguous legal position
created by the long delay since Government first announced that
the provisions would be repealed. We also remain concerned that
the police are unclear about the minimum level of access to Parliament
which they are required to maintain. (Paragraph 44).
The Government agrees with the Committee's view of
the effective and sensitive policing of the Tamil protest last
year. As that protest showed, a compulsory prior notification
scheme is impractical when communities feel very strongly about
an issue and want to make their views known. However, in terms
of the legal position since the Government announced its intention
to repeal sections 132 to 138 of SOCPA, the law remains in force
until such time as it is repealed.
The Government notes the Committee's concern at the
delay since we first announced that we would repeal the SOCPA
provisions. However, part of that delay has been to ensure a proper
Parliamentary scrutiny of the provisions given concerns expressed
by some in Parliament that it was not sufficiently consulted when
sections 132 to 138 of SOCPA were introduced in 2005. The Committee
will be aware that in moving to repeal sections 132 to 138 of
SOCPA, we have taken seriously the need to ensure the proper
operation of Parliament is safeguarded, particularly in terms
of ensuring minimum levels of access.
The Joint Committee on the draft Constitutional Renewal
Bill in its scrutiny of the contents of the draft Bill in June
2008 and the Joint Committee on Human Rights in its report Demonstrating
respect for rights? A human rights approach to policing protest
(recommendations 13 and 16) made a number of recommendations
about maintaining access to Parliament which we believe are addressed
by the provisions contained in Schedule 5 of the Constitutional
Reform and Governance Bill (see paragraph x)
The Government recognises that the police, the public
and Parliament need to be clear about powers to maintain access
to Parliament. We believe that the provisions in Schedule 5 of
the Constitutional Reform and Governance Bill provide that clarity
by providing the police with powers to secure a level of access
to Parliament which is commensurate with Parliament's expectations
but does not restrict the right to peaceful protest. .
13. The Government has undertaken to repeal the
SOCPA provisions in the forthcoming Constitutional Renewal Bill,
the introduction of which was promised during the current parliamentary
session and which is one of the bills featured on the draft legislative
programme for 2009-10. The former Speaker, Michael Martin MP,
initiated a meeting of relevant parties to discuss how the various
outstanding issues could be resolved. We hope that Speaker Bercow
may be willing to carry on the discussions initiated by his predecessor
on resolution of the various outstanding issues. (Paragraph 45).
As the Committee will be aware, the Constitutional
Reform and Governance Bill was introduced into Parliament on
20th July and had its Second Reading on 20th
October. Clause 35 of Part 4 of the Bill repeals Sections 132
to 138 of the Serious Organised Crime and Police Act 2005. Clause
35 also gives effect to Schedule 5 which contains new provisions
to provide the police with discretionary powers to impose conditions
on marches and demonstrations in an area around Parliament in
order to maintain access to and from the Palace of Westminster.
Schedule 5 also provides the Secretary of State with power to
make an order specifying the requirements that must be met in
relation to maintaining access to the Palace of Westminster and
the area around Parliament in which the new powers can be exercised.
We have consulted the Metropolitan Police and the
House Authorities on the specific requirements that must be met
and we intend to provide the House with a draft order for scrutiny
at Committee stage of the Bill.
The Government has also been in discussion with Westminster
City Council and the Greater London Authority to ensure a co-ordinated
approach is taken to the repeal of SOCPA. We look forward to
continuing these discussions.
COUNTER-TERRORISM POWERS
14. We share the Minister's attitude to counterterrorism
powers and we deplore the obvious overuse of section 44 of the
Terrorism Act 2000 in recent years. We do not agree with the
suggestion from AC Allison that the public are likely to be reassured
by the routine use of stop and search powers. Targeting likely
offenders is a proportionate response to the terrorist threat
and we look forward to the Metropolitan Police adopting this practice
throughout London. (Paragraph 48).
The Government agrees that it is important that stop
and search powers are used only for the purposes specified in
the relevant legislation.
The Government is committed to working with ACPO
and NPIA to support officers to ensure that stop and search powers,
including section 44 of the Terrorism Act 2000, are always used
proportionately and appropriately. The Home Office is working
closely with the police and the independent reviewer of terrorism
legislation, Lord Carlisle, to further enhance the use of section
44, through more focussed processes including improved application
procedures and more rigorous scrutiny of section 44 authorisations.
In particular, refined tactics in the use of stop
and search under the Terrorism Act 2000 have been introduced across
the Metropolitan Police area. Section 44 powers will now only
be deployed at pre-identified significant locations, such as iconic
sites and crowded places, and when specific operations have been
agreed for specific areas.
In May 2009 the Home Office completed a review, in
consultation with ACPO that examined its methodology in processing
s44 authorisations. It led to the implementation of a number of
measures ensuring an enhanced level of effectiveness and scrutiny
in the processing of s44 authorisations.
15. The other counter-terrorism issue we raised
concerned section 76 of the Counter Terrorism Act 2008, which
makes it an offence to elicit or attempt to elicit information
about a constable which is of a kind likely to be useful to a
person involved with terrorism. We noted media reports that this
could criminalise anyone who took a photograph of a police officer.
The Government agreed with our recommendation that guidance should
be issued to police officers about the scope of the power "making
it clear that it does not criminalise legitimate photographic
or journalistic activity". We welcome the Government's commitment
to develop and issue guidance on the scope of this power and the
clear statement that it is not intended to criminalise legitimate
photographic or journalistic activity. (Paragraph 50).
The Government is clear that counter-terrorism powers
are not designed or intended to stop people taking photographs.
The Home Office has produced
a national circular on photography in public places in consultation
with stakeholders. The circular which was published on 18th
August 2009 clarifies the position on sections 43, 44 and 58A
of the Terrorism Act 2000 for the police and public alike. It
makes clear when the police should be applying section 58A and
more importantly when they should not, for example in the context
of legitimate journalistic activity
The Metropolitan police have issued their own local
guidance on section 58A.
The Home Office has written to the President of ACPO
and Chief Constables with standing section 44 authorisations,
notifying them of the national circular on photography and asking
them to ensure that police officers adhere to both the circular
and NPIA stop and search guidance.
CIVIL INJUNCTIONS
16. We were surprised that the Government's reply
to our report did not give a view on our recommendations on the
use of civil injunctions against protesters, other than to question
the evidence base for them, and that in oral evidence the Minister
appeared to argue that they were wrong in principle. We urge
the Government to review the evidence we published on this point
and to look again at our detailed recommendations about changes
to the Civil Procedure Rules. If the Government remains of the
view that the current Rules remain appropriate despite the Protection
from Harassment Act being applied to protesters in a way not envisaged
in 1997, we expect the Government to set out the reasons for its
view in full. (Paragraph 53).
We have looked again at the Committee's recommendations
about changes to Practice Direction 39 and 25 of the Civil Procedure
Rules ("CPR") in relation to injunctions brought against
protestors under the Protection from Harassment Act 1997. The
Government remains unconvinced of the need to make changes and
as requested we set out our reasons below in full.
The Committee's concerns are centred on its belief
that interim injunctions can restrict peaceful protest. The Government
considers that the Rules provide sufficient safeguards to ensure
that those who are the subject of injunctions have the opportunity
to make representations and the Civil Procedure Rules Committee
would be unlikely to be convinced about the need for change on
the basis of what appears to be an isolated case.
CPR 25, applies to all interim remedies, not
just those under the Protection from Harassment Act 1997. An
application for an interim remedy made without notice to the other
side will not be successful unless the courts consider that there
are good reasons for not giving notice (CPR 25.3).
Practice Direction 25 provides further safeguards.
For example, paragraph 3.4 provides that where an application
is made without notice to the respondent, the evidence must also
set out why notice was not given. Paragraph 5.1 provides that
"Any order for an injunction, unless the court orders otherwise,
must contain (amongst other things):
(1) an undertaking by the applicant to the
court to pay any damages which the respondent sustains which the
court considers the applicant should pay;
(2) if made without notice to any other party,
an undertaking by the applicant to the court to serve on the respondent
the application notice, evidence in support
and any order made as soon as practicable; and
(3) if made without notice to any other party,
a return date for a further hearing at which the other party can
be present."
Therefore, even if an application comes before a
judge without notice, and evidence is only presented by the applicant,
it does not necessarily follow that the judge will make the order
requested. The judge could dismiss the application altogether;
could order it to be heard on notice with both parties present;
or could make an interim order. Where an interim injunction is
issued without notice to the other party, a further hearing date
will be fixed for the purpose of allowing the respondent to attend
to either defend the matter or to apply to vary or set aside the
order.
If we were to alter CPR 25 so that an interim remedy
could not be applied for without notice in certain circumstances
such as protest activities, we would have to define the circumstances
and define protestors. It would be difficult to create appropriate
definitions that could not be exploited by those intent on harassment
or intimidation given there is no legal definition of a protestor
and anyone could claim to be engaged in protest activity. More
significantly, we are not convinced that the interests of justice
would be served by removing the possibility of an interim injunction
without notice in relation to protestors. A small number of individuals
associated with single issue protest campaigns have pursued a
determined course of criminal activity that amounts to harassment
and intimidation of targeted individuals. The Government is clear
that such targets should have the same protections from harassment
as any other victim of harassment.
Nor are we convinced by the Committee's argument
that CPR 25 should be changed because, "the potential risk
of substantial costs faced by protestors who seek to amend or
revoke an injunction once it has been granted" is greater
than if they had been able to make representations at the initial
hearing. Costs could be similarly incurred if an individual had
the opportunity to contest an interim injunction prior to it being
granted.
In relation to CPR 39, paragraph 1.5 of Practice
Direction 39 which requires hearings, including proceedings brought
under the Protection from Harassment Act, to be listed by the
court in private, we are not convinced of the need to reverse
this presumption.
Although it is clearly possible for an initial hearing
to take place without notice being given to the respondent under
CPR 25, paragraph 1.5 of Practice Direction 39 does not exclude
the respondent from a hearing in private. A private hearing would
include only the people involved in the case, their witnesses
and solicitors. Additionally, although applications under the
Protection from Harassment Act 1997 are listed as private hearings,
this does not preclude parties making representations to the Judge
for the matter to be heard in public. The Government does not
therefore see the need to review Practice Direction 39.
SECTION 5 OF THE PUBLIC ORDER ACT 1986
17. We welcome the Minister's commitment to give
careful consideration to amending section 5 of the Public Order
Act to remove the reference to "insulting" words and
behaviour and look forward to receiving and scrutinising the conclusion
his successor reaches in the autumn. (Paragraph 54).
As the Committee will be aware, since its report
in July, the Government has been consulting a number of stakeholders
on the Committee's recommendation to remove the reference to "insulting"
words and behaviour from section 5 of the Public Order Act.
The Government has considered responses from ACPO,
the Police Federation, the CPS, Justice, the Law Society and Justices'
Clerks' Society. While the Government understands the reasons
for the Joint Committee's proposal, we consider that it would
in fact be counter productive. As some respondents to our consultation
pointed out, the proposal would result in the courts being left
in a very curious position on having to decide on a case by case
basis whether particular words or behaviour were (criminally)
abusive or merely (non-criminally) insulting.
The Government also agrees with the views of the
police and the CPS that the effect of the amendment on minority
ethnic and faith communities is likely to be negative and would
have a detrimental effect on victims of hate crime. By way of
example, in the context of disability hate crime, where insulting
words and behaviour are a common feature, if "insulting"
is removed from the offence, it is possible that people who mock
and verbally torment disabled and other vulnerable people would
commit no offence, even though the overall circumstances and failures
to respond to requests to desist meant that the behaviour concerned
could properly be described as criminal. In its current form,
Section 5 protects citizens from being gratuitously insulted as
they go about their business in public.
The Government is nevertheless concerned about inappropriate
use of Section 5 of the Public Order Act, particularly where it
interferes with the right to freedom of expression. Although
Section 5 is a broad offence which offers the police wide discretion,
the courts have held that it does not conflict with the right
to freedom of expression contained in Article 10 of ECHR and sections
5 and 6 contain the necessary balance between the right of individual
freedom of expression and the right of others not to be insulted
and distressed.
In our discussions with the police and others about
the Committee's proposed amendment, the Government has been unable
to identify specific guidance or training for the police on the
use of Section 5. Given the wide discretion which is afforded
to the police and the potential impact on freedom of expression,
it is vital that officers have a clear understanding of this offence
both in the context of its use in protests and tackling lower
level disorder on the street. The Government shares the conclusion
of the HMIC report Adapting to Protest that "it is disquieting
that such a modest amount of time is devoted in public order training
to the complex legal landscape. It is hard to overestimate the
importance of officers' understanding of the law when each individual
officer is legally accountable for the exercise of his or her
powers.." The Committee will be aware that the ACPO Manual
of Guidance on Keeping the Peace is being revised and we shall
ensure that advice on the use of section 5 in the public order
context is incorporated within that Manual.
The Government notes the Committee's previously expressed
view that guidance will not be sufficient to address inappropriate
use of section 5 by the police. We do not share this view and
intend to provide separate guidance for the police on Section
5 which reiterates the balance between the right of individual
freedom of expression and the right of others not to be insulted
and distressed gratuitously. We shall draft guidance in consultation
with ACPO, the CPS, NPIA and civil liberty groups. We intend to
have a draft ready in line with the timetable for the revision
of wider ACPO guidance on public order which we shall share with
the Committee.
QUASI-PUBLIC SPACE
18. We called on the Government to "consider
the position of quasi-public space to ensure that the right to
protest is preserved". The Government's reply acknowledged
our concern and indicated that the Home Office would discuss the
issues with local authorities and relevant NGOs. The Minister
undertook to provide us with a progress report later in the year
and we welcome this commitment. (Paragraph 55).
The Government is working with ACPO to clarify the
extent of police powers in relation to protests on private land.
We are taking on board HMIC's advice on how to police protest
on private land in a way that upholds people's right to peaceful
protest, balanced against the rights of others to peaceful enjoyment
of possessions including private property .
Compliance with any guidance will be further underpinned
by a Code of Practice on Public Order. The Government will be
consulting a wide range of stakeholders on the Code of Practice
and will take this opportunity to ensure local authorities and
NGO views on this issue ( as well as wider issues) are taken into
account.
TAKING
AND RETENTION OF PHOTOGRAPHS
19. The Court of Appeal gave judgement on 21 May
2009 in the case of Wood. This concerned the
taking and retention of photographs of an anti-arms campaigner
at the AGM of an organiser of trade fairs for the arms industry
by the Police's Forward Intelligence Team. The home office is
working with ACPO to develop guidance on this issue and the Minister
undertook to report back to us in the autumn. We look forward
to hearing more from the Home Office in the autumn about guidance
to police forces on complying with the Court of Appeal's judgement
in the Wood case. (Paragraph 56).
The Government recognises that the issue surrounding
the retention of personal information is a sensitive area.
The Management of Police
Information (MOPI) Code of Practice (2005) and its supporting
operational guidance which were introduced to provide a common
national framework and standards for the management of police
information, while not expressly dictating on the taking and
retention of photographs, sets out the key principles which are
relevant, namely on the collection, review, retention and disposal
of police information.
As the Committee will be aware, HMIC in its report
Adapting to Protest has recommended that Home Office should clarify
the legal framework for the use of overt photography by police
during public order operations and the collation and retention
of photographic images by police forces and other policing bodies.
In line with this recommendation, the Home Office will issue further
detailed advice on Wood drawing on the summary of the implications
of the judgment as set out in the HMIC report Adapting to Protest,
Counsel's advice sought by ACPO and the Metropolitan Police's
revised standard operating procedure on overt filming and photography.
Compliance with Home Office guidance on Wood will
be further underpinned by a Code of Practice on Public Order.
CONCLUSION
20. A theme implicit in our consideration of policing
and protest issues has been the tension between the broad discretion
given to police officers in dealing with public order issues and
ensuring compliance with the UK's human rights obligations. We
noted in paragraph 48 an example of the Government having a clear
policy in relation to the use of counter-terrorism powers which
has not always been consistently followed by police forces. The
use of containment raises this issue in a different way. Containment
raises human rights issues of sufficient importance that they
will be considered by the European Court of Human Rights, but
the Government's view is that the use of containment is a tactical
matter for the police to decide. The Minister described police
training on human rights as "essential" but also said
"I cannot dictate to the police what training they should
or should not do".(Paragraph 57).
The Government reiterates its support for the revision
of ACPO training to provide officers with a clear understanding
of the use of police powers that can apply in a public order situation,
including explicit training on the facilitation of peaceful protest
as the starting point, and human rights obligations on the police.
The Government stands ready to provide input on legislation and
powers into training and guidance and commends the police and
NPIA on their swift action on rolling out revised training programmes.
21. This raises three issues of general concern.
The first concerns establishing the proper role for the Government
in setting statutory boundaries for the police, so that police
officers can exercise discretion without cutting across Government
policy or contravening human rights legislation. We are not convinced
that the Government is clear what its role should be. ACPO is
taking an increasingly important role as an informal regulatory
body for police forces - producing guidance on public order and
other operational matters: to what extent is it answerable to
the Home Office for the advice it provides? (Paragraph 58)
The Home Secretary has responsibility for
setting the strategic direction and national framework for policing
in England and Wales but the roles and responsibilities of the
partners involved in the current `tri-partite' arrangement is,
as noted in the Policing White Paper, "a complex and changing
picture". In considering this issue however, the White Paper
confirms the need "to uphold a key tenet of British policing
- the ability of Chief Constables to make operational decisions
without political interference."
HMIC has also given consideration to the role of
ACPO, noting that" The position and status
of the Association of Chief Police Officers should be clearly
defined with transparent governance and accountability structures,
especially in relation to its quasi-operational role of the commissioning
of intelligence and the collation and retention of data."
The Government notes that the new ACPO
President is giving consideration to how ACPO
should be structured, organised and funded and the national role
it should play in policing. The Government stands ready to work
with tripartite partners on proposals for future changes.
22. A key finding of our enquiry into policing
protest concerned the importance of leadership on human rights
matters. We look forward to continuing engagement with ACPO,
the Home Office and individual police forces to ensure that human
rights become fully integrated into police policy, training and
guidance and operational decision making. (Paragraph 59)
The Government can confirm that the police are committed
to ensuring that human rights become fully integrated into police
policy, training, guidance and operational decision making.
As this response has repeatedly stressed, work has already begun
on this through the revision of guidance and training courses
at command level setting common standards. That guidance will
be supported by a Code of Practice both of which will be public
facing and informed by wide consultation with a range of partners
including the valuable input of the Joint Committee.
23. The police serve our community and must be
fully accountable to it. Public trust in the police can be seriously
damaged where accountability is seen to be lacking. We recommend
that the Metropolitan Police publish the Cass report into the
death of Blair Peach without redaction, to help bring some closure
to the family and friends of Mr Peach and to initiate a debate
about how the policing of protest has improved and can improve
still further. (Paragraph 60).
Earlier this year the Metropolitan Police Commissioner
publicly stated his desire to publish the report into the death
of Blair Peach unless there were overwhelming reasons not to do
so. This view has not changed. At the request of the MPS the
Crown Prosecution Service has agreed to review the report and
provide advice as to whether any further investigation into any
aspect of the matter would be justified. This independent oversight
should provide clarity to the family of Blair Peach and the public
that the MPS has exhausted all investigative options in relation
to this historic case.
The report was handed to the CPS on 14 December 2009.
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