Oct 30, 2020 - Legal News by Source:- www.ibanet.org ( International Bar Association)
In early September, environmental protest group Extinction Rebellion (XR) blocked access to printing presses used by UK newspapers. The move drew condemnation from government figures – and added to the febrile atmosphere of protest during 2020.
XR – which describes itself as a non-violent direct action group which takes disruptive, peaceful action – halted production on a number of News UK broadsheet and tabloid titles. XR claims the United Kingdom ‘[needs] a free press but we do not have it’ and expresses concern that much of the media is failing to report the climate emergency.
In response to the blockade, UK Prime Minister Boris Johnson and Priti Patel, the UK Home Secretary, reportedly asked government officials to consider whether reclassifying XR as an organised crime group was possible. Home Secretary Patel described the protest as ‘a shameful attack on our way of life.’
The very idea of criminalising a group like XR, say lawyers, is ridiculous. ‘It’s legally illiterate and I’m not sure how they can make it happen,’ says Raj Chada, Head of the Criminal Defence, Financial Crime and Regulatory Department at Hodge Jones & Allen.
“The Trump administration are not targeting a particular group, they’re just targeting anyone who protests as ‘terrorist’
North American Regional Forum Liaison Officer, IBA Human Rights Law Committee
‘It’s absurd,’ agrees Ella Jefferson, a criminal defence solicitor at Bindmans.
Both Chada and Jefferson say section 45 of the UK Serious Crime Act, which defines organised crime groups as having a purpose of carrying out criminal activity, was not designed to target groups like XR.
The right to peacefully protest is enshrined in the law of most nations. In the UK, it falls under the Human Rights Act and the European Convention on Human Rights. In the United States, for example, it is part of the First Amendment to the US Constitution.
The right to peacefully assemble was reinforced in July by the United Nations Human Rights Committee, when it adopted General Comment 37 on this very topic.
UK case law, meanwhile, has always come down on the side of those engaged in peaceful protest. Chada points in particular to the landmark 2006 House of Lords case R v Jones etc, concerning convictions with conditional discharge of individuals who had been found guilty of criminal damage to military sites in an action in protest against the Iraq war.
In that case, Lord Hoffmann said ‘it is the mark of a civilised community’ to accommodate ‘civil disobedience on conscientious grounds’, where both police and protestors behave with restraint. The penalty for causing disruption in a peaceful protest is minimal – a fine, or conditional discharge – while the penalties for deliberate criminal acts, including violence within a protest, are significantly more severe.
‘The penalty is low because value of free speech is so great,’ Chada explains.
Bindmans has represented a large number of XR protestors arrested during the group’s actions in London. The group’s first major action in November 2018 and a series of protests in April 2019 saw mass arrests.
Ahead of further protests in October 2019, the Metropolitan (Met) Police made an order under section 14 of the Public Order Act which effectively banned any XR assembly. A number of protestors were subsequently arrested, but Bindmans successfully challenged the order in the High Court.
‘Because Extinction Rebellion is such a big group and they’re such an organised group the police don’t really know how to deal with them,’ believes Jefferson.
Met Police figures show that 1,151 arrests were made in the April 2019 protests, and Met Police Commissioner Cressida Dick told a plenary session of the London Assembly in autumn 2019 that 1,832 people were arrested in the October 2019 XR protests.
Commissioner Dick admitted to the London Assembly Police and Crime Committee in May 2019 that XR ‘came in larger numbers than we expected, used different tactics from what we had been led to believe and expected, and certainly used new tactics well beyond anything that we had seen before’.
She also said there were delays in processing those arrested because ‘a huge proportion of protestors wanted to use the same firm of solicitors, and the solicitors were overwhelmed’, but she dismissed claims that the police ran out of custody cells.
The XR protests in 2020 have taken place against the backdrop of other global movements, particularly the Black Lives Matter (BLM) protests sparked by police killings of Black men and women in the US.
US President Donald Trump, lumping BLM protestors in with left-wing ideology movement Antifa, claimed in May that the US government would designate Antifa as a terrorist organisation.
‘It’s problematic for a lot of reasons because they’re not naming one actual organisation as a terrorist organisation, they’re not targeting a particular group, they’re just targeting anyone who protests as “terrorists”,’ says Alka Pradhan, North American Regional Forum Liaison Officer for the IBA Human Rights Law Committee.
‘Unless there’s an express intent to commit violent protest you’re assumed to be peaceful. If there is disruption that’s still assumed to be peaceful protest,’ Pradhan explains.
Pradhan says climate change protests in the US have so far avoided the scrutiny of the BLM protests, as they have not been ‘particularly anti-administration’.
Some BLM protests in both the US and UK saw violence between protestors and police, but lawyers say it should be possible for authorities to identify whether such violence is supported or encouraged by a protest’s organisers.
‘We have a long history of protests in democratic countries and it’s very easy to identify whether somebody is dictating violence or not,’ Pradhan says.
So far, XR protests have been calm, and Jefferson says none of her clients have complained of police aggression.
Criminalising protests is a slippery slope towards suppression of free speech, however, adds Chada.
‘It’s dangerous because it will deter people from protests,’ he says. ‘There’s a lot of rhetoric around at the moment about the criminal justice system, about lawyers, and I think it’s part of that agenda. There needs to be a health check with any change about how it affects that fundamental freedom.’