Police reform bill ends accountability
Without a dedicated regulatory body, the chance of transparent adjudication into complaints against the police will be lost
Sophie Khan guardian.co.uk, Friday 8 April 2011 11.28 BST Article history
Thankfully, last month's anti-cuts march in central London did not lead to the kind of police brutality witnessed during earlier demonstrations. The IPCC received 111 complaints in connection with the student protests in November and December 2010. Nonetheless, UK Uncut protesters say the police "tricked" them during their occupation of Fortnum and Mason, giving them assurances that they would be able to leave the shop without interference and subsequently arresting them as they left. Should any of the campaigners choose to file a complaint about their treatment, the current structure of recording and handling complaints against the police will ensure it is recorded so that grievances can be identified and lessons learned. But will that still be the case if the police reform and social responsibility bill comes into force in May next year? I suspect not.
The bill, which is making its way through parliament, will bring the most radical change to the police complaints procedure we have seen since the reforms that followed the death of Stephen Lawrence. The Police Reform Act 2002, which replaced the much-criticised Police Complaints Authority with the Independent Police Complaints Commission, has in recent years been the gatekeeper to all complaints against the police and the only body to which complainants can appeal following local and supervised investigations by the police's professional standards departments. But that will no longer be the case from May 2012. The safeguards that were put in place by the publication of the IPCC's statutory guidance in April 2010 will be removed and an unregulated system of police complaints will result.
Schedule 14 of the bill at paragraph 8 (5) will give police forces unfettered discretion in determining which complaints they wish to record and – although, as exists today, there will be an appeal process to the IPCC for non-recording – one suspects the police will put up a fight when their authority is challenged.
But the most shocking and controversial aspect of the bill will be the loss of the independent appeal to the IPCC following a local or supervised investigation. This important element of the complaints procedure, although it does not uphold all appeals, does ensure that a fresh review of the complaint is carried out. Where the appeal is upheld, a reinvestigation is ordered.
My reading of the bill suggests these concerns have not been identified or taken on board and will become commonplace under an unregulated police complaints procedure, which is already open to abuse by the police. It is highly unlikely that investigations into complaints made by protestors such as Jody McIntyre, who was pulled out of his wheelchair and dragged across the road by a Metropolitan police officer during a student protest in December, would even be recorded in the future.
The powers that will be meted out to the chief officer as provided by paragraph 22 of schedule 14 are neither welcomed nor sought by the public. Once the bill is enacted it will end the only real opportunity for a transparent adjudication into complaints against the police, other than civil claims brought in court.
These reforms are in stark contrast to the home secretary's proposals to make the police service more accountable to local people. Without an external body to regulate the complaints, where is the accountability? The lazy provisions of the bill at paragraph 7 of the schedule state that the local policing body (the police and crime commissioners or the mayor's office for policing and crime) may direct the chief officers to take such steps as the local policing body thinks appropriate in order for chief officers to comply with their obligations. However, these provisions do not go far enough, especially as the local policing body will not have the power of an ombudsman.
Without the presence of a dedicated regulatory body for the police, many abuses will go unchallenged. The only viable option available against the chief officers would be to bring judicial review proceedings to challenge their decision. But with legal aid cuts on there way, will that avenue be open? We may see a return to a pre-Macpherson style landscape in policing, where the rights of the public and the protestor went unrecognised and the words "police" and "accountability" would not even appear in the same sentence.
http://www.guardian.co.uk/commentisfree/libertycentral/2011/apr/08/police-reform-bill-accountability
Sunday, 8 May 2011
Solicitors Journal - Siren Call
Siren call
18 April 2011
Content:By Sophie Khan
The police reform bill threatens the future of an accountable and transparent police complaints procedure, argues Sophie Khan
The recent wave of demonstrations has renewed focus on the importance of the Independent Police Complaints Commission’s role. The current structure for recording these complaints requires that all are recorded so that grievances can be identified and lessons learned. But will that be the case in the future once the police reform and social responsibility bill is brought into force on 3 May 2012?
The bill, which at present is making its way through parliament, will bring with it the most radical change to the police complaints procedure that we have seen since its reformation following the death of Stephen Lawrence.
The Police Reform Act 2002, which created the Independent Police Complaints Commission (IPCC) in the wake of the highly criticised Police Complaints Authority, has been the gatekeeper to all claims against the police for several years. It is the only appeal body following local and supervised investigations by the police’s professional standards departments.
But under the new bill that will no longer be the case. The safeguards that had been put in place by the publication of the IPCC’s statutory guidance in April 2010 will be removed and an unregulated system of police complaints will emerge.
Open to abuse
Schedule 14 of the bill at paragraph 8(5) will give police forces an unfettered discretion in determining which complaints they wish to record and, although there will be an appeal process to the IPCC as exists today for non-recording, there is a sense that the police will put up a fight when their authority is challenged. As far as I can tell from the bill, these concerns have not been identified and will become a common theme of an unregulated police complaints procedure which is already open to abuse by the police.
It is highly unlikely that investigations into complaints made by protestors such as Jody McIntyre, who was seen pulled out of his wheelchair and dragged across the road by a Metropolitan Police officer during a student protest in December, would even be recorded in the future. But the most shocking aspect of the bill will be the loss of the independent appeal to the IPCC following a local or supervised investigation. This important aspect of the complaints procedure does not uphold all appeals, but does ensure that a fresh review of the complaint is carried out and where the appeal is upheld a re-investigation directed.
A new and unequivocal power will be meted out to the chief officer as provided by paragraph 22 of schedule 14 which is neither welcomed nor sought by the public. If enacted, the bill will end the only real opportunity for a transparent adjudication into complaints against the police other than civil claims brought at court.
These reforms are in stark contrast to the proposals that had been set down by the home secretary Theresa May to make the police service more accountable to local people. Without an external body to regulate the complaints, where is the accountability?
Not far enough
The lazy provisions of the bill at paragraph 7 of the schedule state that the local policing body, being the Police and Crime Commissioners or the Mayor’s Office for Policing and Crime, may direct the chief officers to take such steps as the local policing body thinks appropriate in order for chief officers to comply with their obligations. However, I believe these provisions will not go far enough to address this issue, especially as the local policing body will not have the power of an ombudsman.
Without the presence of a dedicated regulatory body for the police it is clear that a vacuum of power will emerge and many abuses will go unchallenged. The only viable option available against the chief officers would be to bring judicial review proceedings to challenge their decision. But, with legal aid cuts on the way, will that avenue be open? We may see a return to a pre-Macpherson style landscape in policing, where the rights of the public and the protestor are not recognised and police accountability is nowhere to be seen.
Postscript:
Sophie Khan is a solicitor-advocate specialising in actions against the police at GT Stewart. Contact: s.khan@gtstewart.co.uk
Wednesday, 6 April 2011
Solicitors Journal Blog -On the Beat
On the beat
6 April 2011
Sophie Khan talks shop April 6 - Speak now, or forever hold your truth
The tough new security measures that have been proposed by the Home Secretary to “help [the police] to do their work” on the day of the Royal Wedding will signal the beginning of a policy that will be used to interference with the right to protest beyond the 29 April. Once these proposals will come into force it will be difficult to stop the police abusing the powers that they have been given as we have previously witnessed with the disproportionate use of section 44 stop and search power against protestors. The new proposals will go as far as using ‘football-style’ banning orders for ‘known hooligans’ and the power to forcibly remove head and face wear at a protest. But what the new proposals do not set out is who will be classified as a ‘known hooligan’ and what rights they will have to challenge their classification? Without knowing the answers to these questions it is likely that many protestors could be subjected to an unacceptable interference will their right to protest. The police, in my opinion, are using this opportunity to redefine the landscape in which to protest and restrict this fundamental liberty which will see even more protesters classed as criminals. The new Metropolitan Police team, Operation Brontide, set up following the anti-cut demonstrations is a definite move by the police to crackdown on the right to protest, especially as it is hot on the heels of Operation Malone, which led to an unprecedented level of arrests of students across the country. But with many of these arrests now concluding in no further action have the men behind Malone taken advantage of the situation? I feel that they have and the distress that they have caused in criminalising the younger generation while they themselves ‘live the good life’ now needs to be scrutinised so that the same mistakes are not made again. The damage and distrust that has been then created by their actions should not be underestimated and the news that 138 UK Uncut protestors have been charged with aggravated trespass over their sit-in at Fortnum & Mason on 26 March galvanises feelings among protestors that the law is being used and abused to fit ulterior motives. If this is the case the police run the risk of discrediting their own investigations and opening up a chapter in policing that I felt was dead and buried. The right to protest will live on whether the police like it or not as many, like myself will not let this cornerstone of our liberty be extinguished without a fight.
http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=17725&c=1
6 April 2011
Sophie Khan talks shop April 6 - Speak now, or forever hold your truth
The tough new security measures that have been proposed by the Home Secretary to “help [the police] to do their work” on the day of the Royal Wedding will signal the beginning of a policy that will be used to interference with the right to protest beyond the 29 April. Once these proposals will come into force it will be difficult to stop the police abusing the powers that they have been given as we have previously witnessed with the disproportionate use of section 44 stop and search power against protestors. The new proposals will go as far as using ‘football-style’ banning orders for ‘known hooligans’ and the power to forcibly remove head and face wear at a protest. But what the new proposals do not set out is who will be classified as a ‘known hooligan’ and what rights they will have to challenge their classification? Without knowing the answers to these questions it is likely that many protestors could be subjected to an unacceptable interference will their right to protest. The police, in my opinion, are using this opportunity to redefine the landscape in which to protest and restrict this fundamental liberty which will see even more protesters classed as criminals. The new Metropolitan Police team, Operation Brontide, set up following the anti-cut demonstrations is a definite move by the police to crackdown on the right to protest, especially as it is hot on the heels of Operation Malone, which led to an unprecedented level of arrests of students across the country. But with many of these arrests now concluding in no further action have the men behind Malone taken advantage of the situation? I feel that they have and the distress that they have caused in criminalising the younger generation while they themselves ‘live the good life’ now needs to be scrutinised so that the same mistakes are not made again. The damage and distrust that has been then created by their actions should not be underestimated and the news that 138 UK Uncut protestors have been charged with aggravated trespass over their sit-in at Fortnum & Mason on 26 March galvanises feelings among protestors that the law is being used and abused to fit ulterior motives. If this is the case the police run the risk of discrediting their own investigations and opening up a chapter in policing that I felt was dead and buried. The right to protest will live on whether the police like it or not as many, like myself will not let this cornerstone of our liberty be extinguished without a fight.
http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=17725&c=1
Tuesday, 22 March 2011
Young Lawyer (Spring Issue)- Fight for your Right
Fight for your right
20 March 2011
When he was spotted pinching a policeman's hat during the siege of Millbank Tower, 22-year-old law student Bryan Simpson became instant tabloid fodder for the 'irresponsible' end of the student protests. So how come the likes of Michael Mansfield QC, Tony Benn and Noam Chomsky are among the 1,000-strong signatories to a campaign set up in his honour? We speak to the Strathclyde student and one of the Defend the Right to Protest team about keeping the police in check
“I was left in the middle of Cumbria, more than 200 miles away from home, with no way of getting back”
Although my involvement remained peaceful throughout the occupation of Millbank Tower, I found myself painted as the ‘Scottish leader of the violent mob’ by the media.
When I returned to Glasgow I was hounded by tabloid journalists, who also harassed my parents and my grandad.
I was arrested two weeks later at my home in Glasgow at 6am by five metropolitan police officers on suspicion of violent disorder.
I was put in handcuffs and left to watch as they raided my flat for evidence, before being taken on a three hour car journey over the border to Cumbria. Once there I was subjected to more than eight hours of questioning. The only evidence they seemed to have about my "violent disorder" were newspaper clippings and BBC news footage which showed me shouting to the crowd "tory scum, here we come" – the chant of the day!
I was eventually released at around 7pm and was told to my personal belongings and my phone had been seized for evidence gathering purposes.
I was left in the middle of Cumbria, more than 200 miles away from home, with no way of getting back.
My experience is in no way an exception. Dawn raids, usually used in drug and terrorism cases, are increasingly used by the Metropolitan Police in its policing of protests. I believe the primary objective of such a tactic is intimidation.
The difficulty with much of the law deployed in the context of public protests is that it is vague, which makes it relatively easy for the police to arrest people and relatively difficult for demonstrators to know when they have crossed the line.
It is highly possible that only a minority of the students arrested in connection with the recent student demonstrations will be charged, let alone convicted. More to the point, it is likely that those students who have had access to quality legal advice and who defend their actions will fair better in the end.
Bryan Simpson is a law student at Strathclyde University
The recent wave of student demonstrations has led to the arrest of at least 225 students following the launch of Operation Malone by Scotland Yard
Not all have been charged, but those who have face accusations ranging from breach of the peace to violent disorder. Some of these offences carry lengthy sentences – in the case of criminal damage it can be up to ten years imprisonment.
It is important for lawyers to see these charges in the wider context of the right to protest. As a means of expression, protests cannot be detached from the rights of freedom of expression. The European Court of Human Rights has taken this approach and recognises the value that public protest plays in any functioning democracy. As recent events in the Middle East have shown, sometimes the streets can be the most legitimate form of expression.
The risk is that in a climate where there has been an increasing overlap with the criminal law, antisocial behaviour law and antiterrorist legislation, the right to protest is trumped or marginalised by competing interests such as the protection of property rights, maintenance of public order or prevention of personal injury.
The law of protest is governed by negative rights. Every stage of holding a public protest has prescriptions. Notice must usually be given to qualify the demo as ‘lawful’. Certain words and gestures that can incur criminal liability must be avoided.
The threat of lengthy sentences loom over the crowd, with deterrence being the explicit rational.
This is not an environment conducive to greater public discussion. The protestor who is made to “face the full force of the law”, as David Cameron proclaimed after the occupation of Millbank Tower, is in a rather precarious legal position.
As those privileged few with direct access to the courts, lawyers are crucial to a culture where public protest is treated as a form of political expression worth protecting rather than something worth penalising or repressing.
The team is calling for all protesters who were arrested during the student demos to get in touch.
Fiona McPhail is a trainee solicitor based in Glasgow and a co-founder of the Defend the Right to Protest campaign. For more information visit www.defendbryansimpson.org
“There does not seem to be any debate about whether the police are in fact taking liberties. In my opinion, they are”
Operation Malone has resulted in vast and unnecessary arrests of students, many of whom have never been in contact with the police before and are being criminalised simply for exercising their right to protest.
There does not seem to be any debate in the public domain about whether the police are in fact taking liberties in the excessive use of their powers against the students. In my opinion, they are. Steps need to be taken now against this growing obsession of the men behind Malone to brandish a whole generation as ‘fair game’ trouble makers.
There must be an adequate response from both criminal and civil liberties lawyers against this unprecedented action by the police to stamp out all public descent. We as lawyers have to ensure rights are protected not just on the streets but also in court. When we fight in their corner we must remember that we are fighting for their freedoms and their future.
Sophie Khan is a solicitor-advocate specialising in actions against the police at GT Stewart Solicitors. Check out her blogs for us at http://www.solicitorsjournal.com/
20 March 2011
When he was spotted pinching a policeman's hat during the siege of Millbank Tower, 22-year-old law student Bryan Simpson became instant tabloid fodder for the 'irresponsible' end of the student protests. So how come the likes of Michael Mansfield QC, Tony Benn and Noam Chomsky are among the 1,000-strong signatories to a campaign set up in his honour? We speak to the Strathclyde student and one of the Defend the Right to Protest team about keeping the police in check
“I was left in the middle of Cumbria, more than 200 miles away from home, with no way of getting back”
Although my involvement remained peaceful throughout the occupation of Millbank Tower, I found myself painted as the ‘Scottish leader of the violent mob’ by the media.
When I returned to Glasgow I was hounded by tabloid journalists, who also harassed my parents and my grandad.
I was arrested two weeks later at my home in Glasgow at 6am by five metropolitan police officers on suspicion of violent disorder.
I was put in handcuffs and left to watch as they raided my flat for evidence, before being taken on a three hour car journey over the border to Cumbria. Once there I was subjected to more than eight hours of questioning. The only evidence they seemed to have about my "violent disorder" were newspaper clippings and BBC news footage which showed me shouting to the crowd "tory scum, here we come" – the chant of the day!
I was eventually released at around 7pm and was told to my personal belongings and my phone had been seized for evidence gathering purposes.
I was left in the middle of Cumbria, more than 200 miles away from home, with no way of getting back.
My experience is in no way an exception. Dawn raids, usually used in drug and terrorism cases, are increasingly used by the Metropolitan Police in its policing of protests. I believe the primary objective of such a tactic is intimidation.
The difficulty with much of the law deployed in the context of public protests is that it is vague, which makes it relatively easy for the police to arrest people and relatively difficult for demonstrators to know when they have crossed the line.
It is highly possible that only a minority of the students arrested in connection with the recent student demonstrations will be charged, let alone convicted. More to the point, it is likely that those students who have had access to quality legal advice and who defend their actions will fair better in the end.
Bryan Simpson is a law student at Strathclyde University
The recent wave of student demonstrations has led to the arrest of at least 225 students following the launch of Operation Malone by Scotland Yard
Not all have been charged, but those who have face accusations ranging from breach of the peace to violent disorder. Some of these offences carry lengthy sentences – in the case of criminal damage it can be up to ten years imprisonment.
It is important for lawyers to see these charges in the wider context of the right to protest. As a means of expression, protests cannot be detached from the rights of freedom of expression. The European Court of Human Rights has taken this approach and recognises the value that public protest plays in any functioning democracy. As recent events in the Middle East have shown, sometimes the streets can be the most legitimate form of expression.
The risk is that in a climate where there has been an increasing overlap with the criminal law, antisocial behaviour law and antiterrorist legislation, the right to protest is trumped or marginalised by competing interests such as the protection of property rights, maintenance of public order or prevention of personal injury.
The law of protest is governed by negative rights. Every stage of holding a public protest has prescriptions. Notice must usually be given to qualify the demo as ‘lawful’. Certain words and gestures that can incur criminal liability must be avoided.
The threat of lengthy sentences loom over the crowd, with deterrence being the explicit rational.
This is not an environment conducive to greater public discussion. The protestor who is made to “face the full force of the law”, as David Cameron proclaimed after the occupation of Millbank Tower, is in a rather precarious legal position.
As those privileged few with direct access to the courts, lawyers are crucial to a culture where public protest is treated as a form of political expression worth protecting rather than something worth penalising or repressing.
The team is calling for all protesters who were arrested during the student demos to get in touch.
Fiona McPhail is a trainee solicitor based in Glasgow and a co-founder of the Defend the Right to Protest campaign. For more information visit www.defendbryansimpson.org
“There does not seem to be any debate about whether the police are in fact taking liberties. In my opinion, they are”
Operation Malone has resulted in vast and unnecessary arrests of students, many of whom have never been in contact with the police before and are being criminalised simply for exercising their right to protest.
There does not seem to be any debate in the public domain about whether the police are in fact taking liberties in the excessive use of their powers against the students. In my opinion, they are. Steps need to be taken now against this growing obsession of the men behind Malone to brandish a whole generation as ‘fair game’ trouble makers.
There must be an adequate response from both criminal and civil liberties lawyers against this unprecedented action by the police to stamp out all public descent. We as lawyers have to ensure rights are protected not just on the streets but also in court. When we fight in their corner we must remember that we are fighting for their freedoms and their future.
Sophie Khan is a solicitor-advocate specialising in actions against the police at GT Stewart Solicitors. Check out her blogs for us at http://www.solicitorsjournal.com/
Saturday, 12 February 2011
Solicitors Journal Blog- On the beat
http://www.solicitorsjournal.com/story.asp?sectioncode=3&storycode=17725&c=1
BLOG
On the beat
7 February 2011
23 January 2011 - But officer!
The police are getting a bit of a rough time in the press at the moment. Not that I really care as it’s most likely that they deserve it, especially if the stories are true.
Unless you’ve been on the moon this month, you will have heard about the collapsed trial of the six environmental protestors who were accused of conspiring to shut down Ratcliffe-on-Soar power station and the subsequent allegations that have been made of an undercover officer, who had infiltrated their group as an agent provocateur. This case, along with the revelations that undercover officers are often promiscuous when carrying out their job, raises serious questions over covert policing and whether it is now time to shine a bright light on this area of law and order.
ACPO, the supervisory body, has now been stripped of its role and there are possibilities that common law actions for negligence and misfeasance in public office may follow suit. The former director of public prosecutions made damning comments about the accountability of covert operations and I would agree that at present accountability is scarce in this undercover world and that the Regulation of Investigatory Powers Act 2000 (RIPA) needs to be more tightly drafted so that activities that are carried out in the name of covert surveillance are proportionate.
It has only been a couple of months since the discovery of West Midlands Police’s misguided Project Champion, which installed CCTV and ANPR cameras in east Birmingham, a predominately Muslim community. The chief constable made the best heart-felt apology he could in the circumstances and it has since been reported that the cameras will be removed – but at the estimated cost of £630,000. Was it worth it? I don’t think so, and examples of these types of surveillance projects worry me as I don’t think they are isolated cases.
Surveillance is out of control and with the enormous costs attached to running these projects there needs to be a greater degree of proportionately in the decision-making process before they are put in action. When they go wrong, they don’t just damage the reputation of the police they damage the fabric of a free society and that takes a long time to heal.
The murky world of undercover policing has now left police officers exposed and the sacred veil that they used to hide behind is no longer there. Proportionate covert policing is the only way forward and this needs to be implemented sooner rather than later for the benefit of all.
BLOG
On the beat
7 February 2011
23 January 2011 - But officer!
The police are getting a bit of a rough time in the press at the moment. Not that I really care as it’s most likely that they deserve it, especially if the stories are true.
Unless you’ve been on the moon this month, you will have heard about the collapsed trial of the six environmental protestors who were accused of conspiring to shut down Ratcliffe-on-Soar power station and the subsequent allegations that have been made of an undercover officer, who had infiltrated their group as an agent provocateur. This case, along with the revelations that undercover officers are often promiscuous when carrying out their job, raises serious questions over covert policing and whether it is now time to shine a bright light on this area of law and order.
ACPO, the supervisory body, has now been stripped of its role and there are possibilities that common law actions for negligence and misfeasance in public office may follow suit. The former director of public prosecutions made damning comments about the accountability of covert operations and I would agree that at present accountability is scarce in this undercover world and that the Regulation of Investigatory Powers Act 2000 (RIPA) needs to be more tightly drafted so that activities that are carried out in the name of covert surveillance are proportionate.
It has only been a couple of months since the discovery of West Midlands Police’s misguided Project Champion, which installed CCTV and ANPR cameras in east Birmingham, a predominately Muslim community. The chief constable made the best heart-felt apology he could in the circumstances and it has since been reported that the cameras will be removed – but at the estimated cost of £630,000. Was it worth it? I don’t think so, and examples of these types of surveillance projects worry me as I don’t think they are isolated cases.
Surveillance is out of control and with the enormous costs attached to running these projects there needs to be a greater degree of proportionately in the decision-making process before they are put in action. When they go wrong, they don’t just damage the reputation of the police they damage the fabric of a free society and that takes a long time to heal.
The murky world of undercover policing has now left police officers exposed and the sacred veil that they used to hide behind is no longer there. Proportionate covert policing is the only way forward and this needs to be implemented sooner rather than later for the benefit of all.
Tuesday, 7 December 2010
Guardian- Comment is Free
Student sit-ins are not acts of trespass
The lack of case law on occupations leaves students vulnerable to draconian prosecution under the law of possession
Sophie Khan guardian.co.uk, Monday 6 December 2010 16.30 GMT Article history
Universities have been taken by surprise by the extent of the protests against tuition fees over the past few weeks, and the biggest surprise of all has been the growth of the student sit-in. Sit-ins such as the ones at University College London and the School of Oriental and African Studies are redefining the arguments around the rights of freedom of expression and assembly.
The debate is being fought out in the courts as possession claims (normally employed against trespassers) become the weapon of choice against the student occupations. Although Soas and Cambridge have possession orders, the universities have no immediate plans to evict the occupying students and have, in effect, recognised their right to protest. Paul Mason's report for Newsnight last week illustrated the peaceful nature of the occupation at the Brunei Suite at Soas, which is now in its second week, and his description of the "Zen-like calm" of the occupation goes some way to dispel the horror stories being told by the universities in court.
Student occupation, by its very nature, attracts the protection of the rights enshrined by Article 10 and 11 of the European convention on human rights, and these should be given the importance they deserve against with the university's claims for possession – which seem to be based on hypothetical scenarios rather than facts.
The lack of case law on this specific type of occupation is leaving the student occupiers exposed to the harsh law of possession. Without the will of the courts to distinguish the use of this power against them, students will have to fight their corner in court as well. The lines between the right of assembly and trespass are being blurred by these claims and we need to resist the classification of the "student occupation" as a trespass before their right to protest is curtailed.
As the number of student sit-ins rises, it is important that the courts establish definitive tests before they are applied against student occupiers. I acknowledge that seeking a balance between the rights of freedom of expression and assembly and those of property owners is not straightforward, and that a point in law would be made should the courts uphold the students' rights. But the argument that the courts must interject when there is inequality of arms must not be forgotten. Given the draconian nature of the possession claim, we need to allow all arguments to be made before judgments are reached.
The students are vowing to continue their protest with a fourth national protest on the eve of the Commons vote on tuition fees on Wednesday. Students' voices need to be heard both inside courts and outside them.
http://www.guardian.co.uk/commentisfree/libertycentral/2010/dec/06/student-protests-sit-ins-are-not-trespass
The lack of case law on occupations leaves students vulnerable to draconian prosecution under the law of possession
Sophie Khan guardian.co.uk, Monday 6 December 2010 16.30 GMT Article history
Universities have been taken by surprise by the extent of the protests against tuition fees over the past few weeks, and the biggest surprise of all has been the growth of the student sit-in. Sit-ins such as the ones at University College London and the School of Oriental and African Studies are redefining the arguments around the rights of freedom of expression and assembly.
The debate is being fought out in the courts as possession claims (normally employed against trespassers) become the weapon of choice against the student occupations. Although Soas and Cambridge have possession orders, the universities have no immediate plans to evict the occupying students and have, in effect, recognised their right to protest. Paul Mason's report for Newsnight last week illustrated the peaceful nature of the occupation at the Brunei Suite at Soas, which is now in its second week, and his description of the "Zen-like calm" of the occupation goes some way to dispel the horror stories being told by the universities in court.
Student occupation, by its very nature, attracts the protection of the rights enshrined by Article 10 and 11 of the European convention on human rights, and these should be given the importance they deserve against with the university's claims for possession – which seem to be based on hypothetical scenarios rather than facts.
The lack of case law on this specific type of occupation is leaving the student occupiers exposed to the harsh law of possession. Without the will of the courts to distinguish the use of this power against them, students will have to fight their corner in court as well. The lines between the right of assembly and trespass are being blurred by these claims and we need to resist the classification of the "student occupation" as a trespass before their right to protest is curtailed.
As the number of student sit-ins rises, it is important that the courts establish definitive tests before they are applied against student occupiers. I acknowledge that seeking a balance between the rights of freedom of expression and assembly and those of property owners is not straightforward, and that a point in law would be made should the courts uphold the students' rights. But the argument that the courts must interject when there is inequality of arms must not be forgotten. Given the draconian nature of the possession claim, we need to allow all arguments to be made before judgments are reached.
The students are vowing to continue their protest with a fourth national protest on the eve of the Commons vote on tuition fees on Wednesday. Students' voices need to be heard both inside courts and outside them.
http://www.guardian.co.uk/commentisfree/libertycentral/2010/dec/06/student-protests-sit-ins-are-not-trespass
Solicitors Journal - Occupied Minds
Occupied minds
6 December 2010
Main Page Content:By Sophie Khan
Judges must not allow possession orders to trespass on the legality of student sit-ins, argues Sophie Khan
As the wave of student protests rips across the country, it seems the police are not the only ones raising their game against the students. On 24 November, the School of Oriental and African Studies (SOAS) made a claim for possession of property against ‘persons unknown’, including students of the SOAS. The order sought possession of the Brunei Suite, a facility room which had been occupied by the students since 22 November.
The students had organised a sit-in to protest against the coalition government’s proposals to cut university budgets and raise tuition fees, forming part of a larger, on-going protest by students across the country. The demonstration was peaceful and those involved were careful not to interfere with the proper functioning or activities of the university.
Although the students were exercising their article 10 and 11 rights during the sit-in, the claim for possession was granted to the university on 25 November by Henderson J who was presiding over the case. He relied heavily on the case of Appleby and Others v United Kingdom [2003] 37 EHRR 783 in support of his judgment for possession.
Striking a fair balance
In that case the applicants who lived in Washington, Tyne and Wear had been campaigning against a plan to build on the only public playing field near Washington town centre. The applicants in March and April 1998 tried to set up a small stall in The Galleries, a shopping mall that had become the effective town centre.
The private company that had recently bought up most of the shopping area from the government had refused them permission to collect signatures for their petition. They relied on the rights of article 10 and 11 of the ECHR on the bases that the shopping mall was a quasi-public space in which individuals could claim the right to exercise freedom of expression and assembly in a reasonable manner.
Although the majority judgment in that case recognised the importance of their rights, it stated that they were not unlimited and that the property rights of the owner of the shopping centre had to be taken into consideration. However, the dissenting opinion of Judge Maruste recognised the importance of wider considerations when striking a fair balance between the competing rights.
Maruste J said: “The old traditional rule that the private owner has an unfettered right to eject people from his land and premises without giving any justification and without any test of reasonableness being applied is no longer fully adapted to contemporary conditions and society.” If wider considerations were to be taken into account, then the contemporaneous student protests would add weight to a defence against a claim for possession against an occupied room which otherwise would not be viable.
Grass roots
The use of possession claims by the SOAS is unprecedented and at worst could be an abuse of process because of the draconian nature of the order, which does not allow for proportionality to feature in the argument against. And, although the SOAS was the first university to claim possession against occupying students, it will not be the last – at the time of writing Cambridge University had obtained an interim injunction against a student occupying the Old Schools building.
The lack of case law on this specific type of possession claim also creates problems for the occupying students. The sit-in could be classed as a quasi-trespass, as the students have the right to enter and remain but not to occupy. However, it is a peaceful protest carried out by students of the university, for the future of their university.
The uniqueness of the occupation therefore distinguishes it from other forms of trespass and could not be classed in the same league as the recent example in Mayor of London v Rebecca Hall [2010] EWHC 1613 Admin, the democracy village case, in which a group of protesters had set up camp in Parliament Square Gardens. In this judgment, Griffin J considered the following questions:
Can the claimant establish a right to possession?
Are the defendants in occupation of and trespassers on PSG?
Does the article 10 and/or article 11 right provide a defence and disentitle the claimant to possession?
Have the defendants breached the criminal law in the course of their occupation, and, if so, is this an exceptional case in which to grant an injunction in support of the criminal law and if so are injunctions a proportionate response to the aims of the mayor to regain control of the gardens for the benefit of others?
Should the court grant an injunction in the exercise of its discretion against any of the defendants?
Filling the gap
Many of these questions would not be applicable in sit-in cases, thereby creating a gap in the law where both the law of possession and the right of assembly do not reign.
The dissenting opinion of Maruste J in the case of Appleby could therefore be used as a starting point to fill that gap, but much work needs to be done on this area before definitive tests are established and applied against student occupiers.
Postscript:
Sophie Khan is a solicitor at Imran Khan & Partners and represented the SOAS sit-in students. Contact: sophiek@ikandp.co.uk
http://www.solicitorsjournal.com/story.asp?storycode=17388&encCode=2079109861BC8633923JTBS737226611
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