Director of Public Prosecutions, Kier Starmer, today announced new guidelines in relation to prosecuting protesters. In short, he is attempting to distinguish between “good” and “bad” protestors.
In the guidance, the DPP has set out a myriad of factors that will, subsequent to the evidential test being met, increase or decrease the likelihood of prosecution on the basis of public interest.
This guidance is supposed to help prosecutors distinguish between those attending a protest with intention to cause ‘violence, damage, disruption or making threats’ and those who merely get caught up in the moment.
The factors that increase the likelihood of a prosecution include; taking steps to conceal your identity, being in possession of a weapon at the time of ‘the offence’ and significant disruption of people and business. Taking the aggravating factors off of the page and into reality, it is easy to see just how misguided the ‘guidance’ is.
On the 9th December2010, parliament square was filled with thousands of students protesting against student fees. It had snowed two weeks before and was still absolutely freezing. I was there, with a placard and a scarf on. Had these guidelines been in place then, two factors that increase the likelihood of prosecution would have already have been met. By placing a scarf over the lower part of my face it appeared I was attempting to conceal my identity, rather than trying to avoid frost bite in the name of stopping the fees. I was also carrying a placard, which, given the fact many placards that day were either thrown at the police, or used for fires to keep warm, could be construed as a weapon. In fact, the mention of the word weapon with no elucidatory notice as to what the DPP means by this in the context of a protest clearly undermines legal certainty. It also introduces capriciousness into what will and will not constitute grounds for prosecution, which is entirely at odds with the purpose of these guidelines.
The third factor I listed, ‘significant disruption of people and business’, is present by default. Estimates vary about the number of students in parliament square on that day, but it is safe to say that tens of thousands were present. That number of people in a concentrated area, coupled with the closure of roads, businesses and transport links were enough to be deemed ‘significant disruption’.
Unintentionally, my conduct, by merely being at the protest, is enough to satisfy three of the categories which appear to place me in the ‘bad’ protesters category.
Falling into these categories is obviously not enough to get me arrested, however, being at the protest was. As appendix A suggests, these guidelines will have pertinence in relation to a number of offences, including, but not limited to, affray, wilful obstruction of a public highway or (causing) harassment, alarm or distress. On that day I wilfully obstructed a public highway contrary to section 137 of the Highways act. There is further case to argue that I caused harassment, alarm or distress contrary to section 5 of the Public Order Act 1986 by singing songs calling for all Lib Dems and Tories to be burnt, by carrying a placard that stated that Cameron was putting the ‘n’ in cuts, or by responding to shouts of cut, cut, cut with fight, fight, fight.
Logistically speaking it would be impossible to arrest me on the basis of these offences at the protest, as all members of the protest, technically, committed an offence in relation to wilful obstruction of a public highway, and a large percentage acted contrary to s.5 of the Public Order Act 1986. To this end, the new guidelines will have little effect on members of large protests, who commit misdemeanours and who, through the lens of a particularly assiduous prosecutor, would fit the test for prosecution under the public interest test. What is worrying is the effect these guidelines will have upon smaller protests.
As the aforementioned scenario suggests, it is easy to fall into the categories which, the guidance asserts, mean there is a higher likelihood of prosecution, without being a ‘bad protestor’ intent on violence and chaos.
Keir Starmer asserted this morning on the Today programme that the new guidelines would help to distinguish between those caught up in the heat of the moment, and those who were there to cause violence and disorder. I would contend that there is a very, very fine line between those two entities in terms of potential prosecutions and that releasing guidelines to try and distinguish between those is an exercise in futility. Furthermore, these guidelines don’t actually provide any stable basis for distinguishing between protestors there with legitimate cause and those intent on trouble, other than what common sense would already have prescribed. If anything, they open up prosecutions on the basis of face coverings and being in possession of a weapon (a placard, a banner, a mobile phone?) at the time of the offence which is a disturbing and dangerous route to take in terms of protecting the right to protest in this country.
Starmer’s guidelines have the look and feel of a bull in a china shop. The heavy handed, one size fits all guidelines miss the subtle nuances of the issue and, as always, fail to take a holistic view of the situation.
Large scale protests that do not cause disruption to people and businesses in some way are non-existent, as are protests devoid of all potential weapons. When the police choose to kettle people for nine hours in the middle of winter, it is not violent intent that prompts mass covering of faces, but rather the bitter cold.
It would seem that, rather than providing for the appropriate separation of potential defendants on the basis of the context in which the offence was committed, these guidelines actually provide a framework for the more industrious and diligent prosecutors to bring unnecessary prosecutions for participating in a protest and could be construed as a direct threat to protest in this country.
Disclaimer: The ‘anecdotal recollections’ of the student protests from the 9th December 2010 may be hyperbolic and/ or fictional and should in no way form the basis for any potential criminal or other liability on the part of the author but instead should be viewed as an explanatory resource for the purpose of furthering an argument. I’m too poor to pay your fines.
