SocialismToday           Socialist Party magazine

On trial for the right to protest

Lois Austin is speaking at the Edinburgh G8 Alternatives Summit workshop on defending the right to protest, alongside Fairford peace campaigners, the McLibel Two and others.

Sunday 3 July, 4-45pm to 6-30pm, Patersons Land, LG34, Holyrood Road/St Johns Street.

On May Day 2001, 3,000 anti-capitalist protesters were imprisoned by a police ‘containment cordon’ in London’s Oxford Circus for over seven hours. Arising from this 150 ‘May Day detainees’ came forward to pursue a legal case against the Metropolitan Police. Socialism Today spoke to LOIS AUSTIN, one of the two ‘test case’ detainees who went before the High Court earlier this year.

ON MAY DAY 2001, 3,000 protesters were imprisoned in Oxford Circus, central London, for over seven hours. They were surrounded by riot police on all sides, brandishing truncheons and shields. Behind them were police horses and vehicles. When protesters asked to leave they were answered aggressively and treated with derision.

The May Day protesters were held with no water, toilet facilities or food. It was cold and wet. Some people were ill and needed medical treatment. Others needed to collect children or get to work. In nearly all cases the police refused permission to leave.

It was for these reasons that protesters in Oxford Circus organised themselves and came together to sue the police for false imprisonment. Up to 150 May Day detainees came forward to pursue a legal case against the Metropolitan Police. Two of those in the containment, Lois Austin, a Socialist Party member and organiser of Justice for May Day Detainees, and Jeffrey Saxby, a non-protester who was in London on business for the day and caught up in the containment, were the two test cases who brought the case heard in the High Court earlier this year.

This case was seen by both sides as extremely important in deciding police powers on demonstrations, explains Lois. "May Day 2001 was the first time that ‘containment’ – as it has come to be known – has been used in such an extensive way in this country. Never before had so many protesters been imprisoned for so long on a demonstration in such intolerable conditions.

"Even the trial judgement states: ‘The facts in this case are quite exceptional. Never before, or since, 1 May 2001 have the police in England formed cordons enclosing a crowd of thousands before a substantial breakdown of law and order has occurred, with the result that the crowd were prevented from leaving for many hours’. Under cross examination even the Metropolitan Police ‘gold commander’, Mr Messinger, the most senior officer in charge on the day, described containment as ‘draconian’."

It was not a surprise, however, that the May Day detainees lost the case with the judge, Sir Michael Tugendhat, finding in favour of the police. "But he went even further than that", comments Lois, "and justified the containment under the Public Order Act sections 12 and 14 – which give the police powers to control demonstrations and protesters – even though the police never used it as part of their defence in court and never invoked it at the time!

"The judgement is very bad news for anyone who wants to protest or who is interested in democratic rights. The judgement needs to be carefully analysed so that all the consequences for the anti-capitalist and trade union movement can be understood. What does it mean for police powers when dealing with demonstrations? Will the police be more ready to use containment in the future? Is this judgement part of a strengthening of state powers across the board, like detention without trial, only made possible in a post 9/11 climate?"

The case the claimants pursued in court was that the containment amounted to false imprisonment in breach of the Human Rights Act, article 5. They were claiming damages for distress against the commissioner of the Metropolitan Police. They argued that their detention for seven hours amounted to a deprivation of liberty contrary to article 5.1 of the Human Rights Act and could not be justified under article 5.1c, which allows for an individual to be imprisoned, but only if the aim is to arrest and bring him/her before a court. Clearly, the 3,000 protesters were not arrested or brought before a court, nor had the claimants themselves been arrested.

The police, on the other hand, argued that the detention was lawful under common law in order to fulfil their duty to prevent a ‘breach of the peace’. They also argued that the containment was permitted under article 5.1c because it was necessary to protect public safety, prevent disorder and crime, and to protect the rights and freedoms of others. The police were hoping that the judge would justify the containment under either of these points of law.

The judge did agree with them. The essence of a long and complicated judgement is that the detention in Oxford Circus did, indeed, amount to ‘more than just a restriction of liberty, the detention was sufficient to amount to a deprivation of liberty’. So article 5.1c was invoked at the time. "The judge agreed that we had been imprisoned", explains Lois, "but – and it’s a big but – the judge justified the imprisonment on the grounds that it was deemed a ‘necessity’, and it was proportionate given the threat the police (as they saw it) were confronted with in Oxford Circus and nearby streets at the time.

"This judgement undermines the protection protesters thought they might have had under the Human Rights Act. It appears that national police forces can act in a repressive manner by responding in a way that is completely disproportionate to any threat posed; and national law, like English ‘common law’, made up by judges, case by case, can override the Human Rights Act.

"It also appears that the police and the judge can interpret human rights law flexibly. Article 5.1c is quite precise in its description of who can be imprisoned and for what reason. It could not be construed, until now, to justify holding 3,000 people for seven hours or more and only arresting a handful of them.

"Basically, the police can lie, and – let’s face it – they do. The case of the Birmingham Six, Guildford Four, and other miscarriages of justice, show this and we have all witnessed police brutality and repression towards protesters. The judge believed the police because he did not want to undermine their authority by finding against them. It also appears that human rights legislation, when it comes to demonstrating against capitalism and all its ills, is not going to protect you.

"The judge justified the containment out of ‘necessity’ and says that it was proportionate and reasonable. The necessity being that the threat to the peace was so imminent at 2pm, the time the decision to implement the ‘absolute cordon’ was taken, that no other measure for maintaining the peace was adequate. How come, then, that the tactic of containment for May Day 2001 was first discussed at a police operational meeting in October 2000 and the decision to implement it was taken in February 2001? In fact, the police briefing meetings show that no tactic other than containment was ever discussed. A police officer giving evidence in court described containment as a ‘tactic of last resort’. Why then was no other measure considered other than the most draconian available? You have to hand it to the ‘thought police’ of the Met that they can anticipate the mood of a crowd so far in advance!

"The justification the police gave for their authoritarianism on May Day was the violence of the crowd. Police policy on the day was based on an assessment by Special Branch, given at police briefings beforehand, which estimated that between ‘500-1,000 hardcore demonstrators [were] looking for confrontation, violence and to cause public disorder’.

"In actual fact there are no reports of violence in the run-up to the cordon being put in place. The crowd at the Elephant and Castle, which gathered at around 12 noon, was described as ‘loud, excitable and vociferous’ in police logs. When the first big crowd arrived in Oxford Circus, the mood is described in police intelligence cell notes as ‘loud and vociferous but not overtly aggressive’. The radio log of one officer stationed at Oxford Circus says: ‘Crowd, calm and bored’.

"In fact, reports of the crowd which the police used in court, such as, ‘…demonstrators at Piccadilly circus with high-pressure water pistols and plastic bin bags, which they [the police] suspected probably contained material for body armour’ (without providing any proof!), never even reached Mr French, the Metropolitan Police ‘silver commander’, supposedly authorised to give the order to implement the absolute cordon.

"So on what basis was the decision made? Where was the imminent threat to the peace that would have made this tactic legal and justify over-riding the Human Rights Act? Not only does the decision to implement the cordon seem completely unjustified on the evidence, there is no record in police logs of the actual order being given. When Mr French was cross-examined in court, he said: ‘I gave the order by mobile phone’. When he was informed by our QC that, ‘mobile phones are not allowed in the control centre’, he then claimed that he made the call on a land line in the control centre. Really! The most important order of the day, a tactic never used in this way before on the streets of Britain, and there is no record of the order ever being given. Remarkable!"

The truth, of course, is that a tiny minority of protesters did resist, mainly at the beginning of the containment when the cordon was first put in place. In the main, this amounted to protesters pushing against police lines. This was in response to the police pushing protesters further and further into the centre of Oxford Circus causing crushing on the inside. Protesters understandably pushed back.

The police used the violence at previous anti-capitalist demonstrations in Genoa, Prague, Göthenburg and elsewhere, as a reason for the containment. The reality is that anti-capitalist protesters have actually been killed at the hands of the police, one in Göthenburg and one in Genoa. A group of protesters, who were viciously attacked by the semi-fascist police in Genoa while sleeping in a hostel, are currently suing them for the terrible injuries they suffered.

"The most worrying thing about this judgement", Lois argues, "is that it justifies the police detaining all protesters, whether they are committing an offence or not".

The judgement states: ‘There are a number of bases for this belief that there would be violence… There are further reasons why the fear could reasonably be said to relate to all members of the crowd… The longer the crowd remained in Oxford Circus, and the more people were released individually, the more readily it could be understood that those who remained were, or might well be, demonstrators, some of whom might become violent (but which of whom the police could not know at least without considering them individually, and perhaps searching them)’.

Justice Tugendhat goes on to criminalise all protesters: ‘I estimate that about 40% were actively hostile at any given time, pushing and throwing missiles, and otherwise showing lack of co-operation. Those not pushing or throwing missiles were not disassociating themselves from the smaller minority who were’.

In relation to Lois Austin, it states early on in the judgement that ‘it is said that her presence in fact provided encouragement to, and cover for, those who were intent on violence’. He goes further: ‘She [Lois Austin] also had what, at first impression, is a compelling reason to leave, namely to collect her baby. But it was a reason which it would have been easy to fabricate, including by arranging for a person to answer the telephone to any officer who attempted to check the story’. He goes on: ‘An officer could reasonably have feared that she might be intending, if released, to use her megaphone in a manner which would aid those intent on obstructing the police’. Since when did a megaphone become an offensive weapon, asks Lois?

The judge acknowledged that Lois was ‘genuinely anguished’ when she could not collect her baby, but: ‘Apart from that, what was actually done by the police that day did not cause her significant distress. On the contrary, I find that she was stimulated by it at the time, and subsequently proud of what she had done while at Oxford Circus’. The judgement continued that Lois Austin ‘willingly took the risk of a threat of violence, or actual violence, on the part of other demonstrators with whom she chose to be present, and her own conduct was unreasonable in obstructing the highway… she was not much distressed, but was stimulated by the event. She performed a role which attracted praise. She was throughout in the company of friends’.

There was a great deal of discussion during the trial about the release policy from the cordon but, as Lois says, "the truth is that there was no release policy if you were a protester. What was obvious from the cross-examination of the police was that they had been briefed by Mr French [the Metropolitan Police ‘silver commander’] that the aim of the containment was to ‘bore protesters to death’. Many of the protesters who had asked to be released were actually told this by officers in the cordon. Jeffrey Saxby was subjected to the same treatment even though he wasn’t a protester.

"The reason this judgement is so dangerous for protesters – and, ultimately, the working class and labour movement, because that is primarily who the state aims repressive legislation at – is because it gives a green light for the police to round up protesters in the future and curtail or even stop their event. One protester throwing a placard could be used as an excuse by the police to surround and contain a whole demonstration".

The police were the real ones threatening violence on May Day. The strong-arm tactics and militaristic presence was enough to make protesters fear violence from the police. The judgement paints a picture of a violent mob which the police had no choice but to treat in this way. The truth is that the protesters were overwhelmingly peaceful – many were first-time protesters – who, because of the heavy-handed policing, were too frightened not to follow police orders.

THE TACTICS POLICE are increasingly using on demonstrations are once again generating a debate on how to defend the right to protest, argues Lois, and on how to get control of the police and democratic accountability. "There is no doubt that the post 9/11 climate and the fear of terrorism whipped up by politicians and the media have created an atmosphere in which a crack down on democratic rights has become possible.

"The judgement in the May Day case, which is extremely hostile to the protesters and gives them no recognition that they were treated unfairly, is only possible in this sort of climate. There has been a raft of repressive legislation through parliament and some of it, like the Terrorism Act 2000, has been used against protesters. Indeed, the judgement explicitly states: ‘Unfortunately, given the events of 11 September 2001 in New York, Washington and the air field in Pennsylvania, and 11 March in Madrid, there is good reason to fear that the authorities in this country will again have to consider what powers they can lawfully exercise against a crowd when the majority of them are not believed to be threatening unlawful action, while a minority of them are believed to be threatening serious disorder or terrorist acts’.

"Here the judge clearly equates protesters – anti-capitalists, anti-war activists, etc – with terrorists. This is exactly what the state is trying to do: use the cover of these horrendous terrorist attacks, carried out by right-wing, reactionary Islamic groups, to denigrate anybody who is against the political establishment and capitalism. Directly after 11 September, similar comments were made in the right-wing press about how anti-capitalist protesters in Seattle had the same aims as al Qa’ida. There is no doubt that the fear of terrorism is being used by the establishment to criminalise protest.

"Anti-war and peace campaigners at military bases in Fairford and Welford have been subjected to police brutality and harassment and have been regularly detained and searched under section 44 of the Terrorism Act 2000. The police held protesters on a coach, on their way to Fairford. They were stopped on the motorway, searched and then escorted back to London. These actions have triggered a campaign for police accountability. Some of the Fairford peace campaigners have proposed human rights advisers working with local police forces.

"Unfortunately, this would not go anywhere near far enough to get accountability or control of police operational policy for demonstrations or their general policy. The police already take legal advice and did so for May Day 2001. It made no difference to how they behaved. As we have seen with the May Day and Fairford coaches’ case, the police ignore human rights legislation knowing that if there is a legal challenge they will almost certainly get support from a judge and the rest of the establishment".

Any illusions anyone may have had in the London Metropolitan Police Authority – set up alongside the London Assembly to ensure accountability of the police – were quickly dispelled when the majority on the committee, bar the Greens, agreed and colluded with the tactic of containment before and after May Day 2001. Members of this committee and from the London Assembly attended Scotland Yard’s operations room on May Day when containment was planned and implemented. This shows the need for campaign for genuinely democratic police accountability structures (which the London Metropolitan Police Authority is not), such as local committees of representatives from communities, trade unions and other organisations. However, even these would only be able to effectively fight for control of the police’s operational policy if the anti-war and anti-capitalist movements and the trade unions had their own political representation, a party which was clear about the nature of the police in capitalist society and prepared to lead a struggle for police accountability.

Like the police, the legal system is also not a benign arbitrator deciding between right and wrong. This part of the establishment is like no other in blatantly revealing the class rule that exists in capitalist society. Sir Michael Tugendhat, the judge in the May Day trial, like almost all top judges, was public school and Oxbridge educated. A great deal of the police barrister’s evidence was aimed at appealing to establishment prejudices, for example, when he put to Lois Austin at the start of her cross-examination that there were a lot of Irish people on the Socialist Party contingent on May Day. Presumably he was trying to insinuate that Irish people are more prone to violence and terrorism and, by association, that the Socialist Party contingent were out for violence. He also ran a red-scare campaign, asking questions about ‘violent revolution’ and so on. The essence of the police defence, argues Lois, was to try and prejudice the judge and anyone else who was listening against protesters.

The judge also showed how just completely out of touch he was. He asked several witnesses, who were also inside the police cordon, what the purpose of protesters coming together at Oxford Circus was. He could not understand the basic point of a demonstration: of people coming together in a common cause to hear speakers, distribute material and have a symbolic protest. For him there had to be a sinister, ulterior motive for coming to Oxford Circus.

When the judge looked at the May Day Monopoly material, which outlines symbolic protests like using monopoly money in shops, he interpreted that as incitement to loot. Yet the May Day guide produced for the day’s protest events explains that using Monopoly money is a symbolic protest and states explicitly that it is to be non-violent: ‘Free money will be distributed for people to go and (try to) use in shops in Oxford Street and the West End, to provoke discussion and critical thought about how important these pieces of paper should be in our lives. This is a non-violent grassroots action’.

"Perhaps one of the most amazing parts of the judgement", says Lois, "is when the judge says he cannot see how the police cordon impeded the right to protest. He says that I was able to do everything I wanted to do inside the cordon, give out leaflets, speak on the megaphone. Therefore, he could not see how human rights defending freedom of speech and the right to assembly had been breached! According to the judge, the containment should be viewed merely as a minor inconvenience: ‘What happened to these claimants on May Day 2001 is comparable in gravity to what happens to many people when a flight is cancelled at holiday time, by reason of a strike or some other such event’.

"Demands to democratise the legal system have to be campaigned for in the trade union and working-class movement. The system of appointed judges is completely undemocratic and all judges should be elected. Trials of this kind, which involve vital questions of civil rights, should be heard by a jury, something we May Day detainees were denied. Demands such as these should also include opposition to any attempts, which are currently being made, to cut back the legal aid system which will further inhibit the working class and poor from getting legal representation. The number of solicitors doing legal aid work has fallen dramatically since 1997 because of cut backs and changes made to the scheme by the government.

"The police used such a repressive tactic towards the May Day protesters because they were fearful of a movement that is outside the realms of a ‘state controlled’ protest. What has characterised the anti-capitalist protests on May Day and other ‘carnivals against capitalism’ is that the assembly points have been unknown to the police and the targets of the protests have largely been kept secret. These protests have stepped outside of the standard routes for demonstrations and the ‘May Day Monopoly’ protest in 2001 was directed at the seat of consumerism, Oxford Circus, which symbolises the commodity driven and greedy society of capitalism.

"Despite the limitations of some of the leaders of the anti-capitalist movement – a distain for organisation, a misunderstanding of the vital role the working class plays in struggle, and the failure to give an alternative to capitalism and not just criticise it – the police and, more correctly, the state, cannot tolerate a movement of young people that they or even the official right-wing trade union leaders do not control.

"This is why the police can tolerate hundreds of demonstrations in London every year but cannot allow the anti-capitalist movement to go on developing. Particularly as the anti-corporation mood is continuing to develop and a big section of young people involved in the anti-capitalist and anti-globalisation movement have began to draw broader conclusions about the need for an alternative to capitalism and some now describe themselves as socialist.

"The ruling class is particularly frightened of young people organising independently of any official institution. We saw the response of the police and the Tory government to the rave culture that developed in the 1990s, one of the triggers for the 1994 Criminal Justice Act. The anti-capitalist movement is much more threatening, because it is a hundred times more political, and is directed against the very system the political establishment upholds – capitalism.

"That is why in the run-up to May Day 2001, the political establishment used the media to disseminate a campaign aimed at demonising the anti-capitalist movement. Tony Blair personally got involved, issuing orders to the police to keep firm control of the protests. Disgracefully, Ken Livingstone, one-time left-winger, joined in to denigrate the protesters. His comments to the media were heavily relied on by the judge and the police during the trial, as was Livingstone’s witness statement. In the London Evening Standard, he wrote: ‘But on 1 May we are faced not with an attempt to exercise the peaceful right to protest but by a deliberate attempt by small groups of people to promote violence and destruction of property in London. Furthermore this violence is central to the objectives of those organising this action… Rather than trying to minimise the possibility of violence or disorder on May Day this is clearly an attempt to maximise it… I would like to give the clearest possible political message to ordinary Londoners. Don’t be fooled. What is planned by May Day Monopoly on 1 May is not a peaceful protest that may go wrong. It is a deliberate attempt to create destruction in the capital. There is no way to share some of the aims of this demonstration and participate in it without furthering the aims of the violent people who are its core… I urge all Londoners to stay away from the May Day Monopoly protest on 1 May’."

"There is nothing the establishment likes better than an ex-radical. Unfortunately for him, his attacks on the anti-capitalist movement were not enough to save him from the hired liars of the right-wing press, who continue to attack him at every opportunity and do not forgive his left-wing past.

"Having said all of this, the fact that the police have been able to out fox the covert tactics used by some groups in the anti-capitalist movement and have been able to use the sheer weight of numbers and the power of the state to effectively ban their mobilisations, again shows the weaknesses of those tactics. On small demonstrations the police are using a number of tactics to try and thwart protest, including containment, which is now being used quite regularly.

"One consequence is that many young people who joined the anti-capitalist and anti-globalisation mobilisations in the past have stopped coming along, fearful of being held for hours by police or being arrested. Even though all sections of the anti-capitalist movement have done an enormous service in raising awareness of the issues involved with globalisation, it is naïve to think, as some of the leaders of this movement do, that a few thousand or more protesters in central London, or elsewhere, can achieve social change or actually get rid of capitalism. Any movement with the aim of doing this has to base itself firmly on the working class and the trade unions. It is the working class that has the economic power in society to change things. This is ultimately true even if the working class and its organisations are not exercising that power in a general way at the moment".

The claimants have been given leave to appeal and plan to do so. As the judgement stands it sets a very bad precedent for what police can do to demonstrators now and, even more importantly, in the future when the working class turns to struggle again in a big way. "There needs to be an urgent discussion in the trade union movement", Lois Austin concludes, "about the repression of protesters going on now and, in most cases, unpublicised. New repressive laws need to be challenged and the right to protest defended. We have to ensure that a new generation, awakened to struggle against an unjust system by the anti-capitalist and anti-war movements, is not deterred from protest".


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