The Met have kicked off week 2 of the XR autumn rebellion with an almighty bang, issuing a revised s14 order that effectively bans XR from protesting in London. Carl Spender of the Activist Court Aid Brigade is here with three things you ought to know about this latest salvo in the cops’ war against environmentalists.
1. The order is potentially unlawful and could be challenged via judicial review
Section 14 of the Public Order Act 1986 allows the senior police officer present at a public assembly to set limits on its size, location and duration, if they reasonably believe it may result in: “serious public disorder, serious damage to property, serious disruption to the life of the community…[or] if the purpose of the persons organising it is the intimidation of others with a view to compelling them not to do an act they have a right to do, or to do an act they have a right not to do”.
However, orders of this sort must comply with provisions of the European Convention on Human Rights, otherwise the police officer making the order – and a court convicting a person for breach of it – would not be acting in accordance with the ECHR, something which is impermissible under s6 of the Human Rights Act 1998. In effectively prohibiting all XR protest within the capital, the Met’s new s14 conditions involve significant – and potentially illicit – interference with people’s Article 10 and 11 rights. The decision to impose them could, therefore, be challenged by means of a judicial review in the Administrative Court (on the grounds of illegality). The (potentially) unlawful nature of the order could also be used in defence of demonstrators prosecuted for allegedly breaching these conditions, as violating an unlawful s14 order is not a criminal offence.
2. However: judicial reviews are risky endeavours
The danger with pursuing a judicial review is that if you lose the case, it sets a harmful precedent which encourages the police to repeat these tactics in the future. This arguably occurred in the case of ‘kettling’, which had an uncertain status in UK and European law until a group of kettled demonstrators challenged (albeit not by JR) a decision to dismiss their case against the Met for false imprisonment (Austin and Another v Commissioner of Police of the Metropolis: HL 28 Jan 2009).
A judicial review of the Met’s latest s14 conditions risks repeating this mistake: if the challenge fails, the police will feel confident in imposing similar conditions on future protests. What’s more, judicial support for the order will remove a possible line of defence for those facing prosecution for allegedly breaching it.
What are the chances of a JR succeeding in this instance? It’s difficult to say: while the conditions appear to be a flagrant violation of demonstrators’ Article 10 and 11 rights, the situation is complicated by the fact that XR explicitly say that their intention is to break the law (rather than merely to protest). On this basis, the Met could argue that the order is not restricting lawful protest activity. Whether or not this will survive judicial scrutiny is another matter, but it is a further reason why it is a bad idea to publicly declare that you are out to break the law.
3. But whether or not the order is lawful, it won’t change what the Met do today
The fact is the Met probably doesn’t care very much about whether the conditions are lawful: their overriding aim is evidently to clear XR off the streets and even if this revised s14 order is found to be unlawful, it has already helped them do this. And herein lies the lesson: the possible illegality of an action will not necessarily stop the police from doing it, either at an individual or a collective level. In practice, an ‘unlawful’ action is merely one for which we might be able to hold them to account at some point further down the line (and even that it is unlikely). In the moment of action, however, what the police do or don’t do is often a question of might, not right.
In imposing these new conditions, the Met have made it clear: it’s them versus XR. The question is, how will XR respond?
Photo: Guy Smallman