UK Liberty

Protest surveillance challenge part II

Posted in freedom of assembly, freedom of speech, law and order, surveillance society by ukliberty on May 23, 2008

Earlier this month there was a “legal bid to challenge the power of the police to use surveillance against peaceful protesters.”

In short the challenge failed:

The judgement is on Bailii.

It seems the police had a reasonable suspicion unlawful activity might occur at the AGM in question:

“EA”, a member of CAAT until 2003, who had a history of unlawful activity against organisations involved in the defence industry and had been convicted of a number of offences in that context.

EA was later ejected from the meeting after chanting some slogans.

But the claimant in this case (Andrew Wood) was not involved in any disturbance, asked “one unobjectionable question”, and “left the meeting as soon as formal business was over”, in the company of a CAAT employee, and they both talked to a leafleter outside – someone who had been peacefully leafleting outside the venue after consulting with the police, and who likewise had not engaged in any unlawful activity.

A civilian photographer emerged from a police vehicle and took some photographs – there is a dispute over how many were taken, and how near he approached. A police sergeant stated that he wanted to establish the identity of the claimant, and that the claimant and EA were in the same group – the claimant does not recall the presence of EA.

Then,

The Claimant and Mr. Prichard walked away from the hotel towards an Underground railway station. They were followed by officers from the EG team. The Claimant says that a police vehicle pulled up near to him and Mr. Prichard and about four officers came and stood near to them. The Claimant was asked for his identity, as was Mr. Prichard. Mr. Prichard identified himself, but the Claimant asked whether he was obliged to do so and, on being told he was not, declined to answer. They both refused to answer questions about the AGM. They were told that they were free to leave the scene and that they were not being detained, although two officers then followed them to the station, trying at one stage to get the assistance of railway staff to obtain the Claimant’s identity from the Claimant’s travel document.

Now, I don’t believe it would be unreasonable to think these activities, considered together, would intimidate Joe Public, and thereby constitute an interference with his Convention rights.

Indeed,

The Claimant says that he felt scared and intimidated by the events in issue. He also says that the incident was “extremely upsetting” and that he “felt shaken and frightened as a result”. He says that he feels very uncomfortable that information may be kept about him indefinitely and may be used without his consent or knowledge. The Defendant, through Counsel, accepts that the Claimant may have felt “unsettled” by what occurred. However, the Claimant relies on his unchallenged evidence to the effect that I have just outlined, asserting that the incident was more than just “unsettling” so far as he was concerned.

So any dispute, it seems to me, would be over whether this activity was proportionate (there’s that word again).

19. On those facts the following issues now arise:

i) Whether the taking of the photographs of the Claimant constituted an interference with his rights under Article 8(1) of the ECHR [right to respect for private and family life];
ii) Whether the retention and potential use of the photographs constituted such an interference;
iii) If there was such an interference in either case, whether it was justified and, in particular, whether it was (a) in accordance with the law and (b) proportionate;
iv) Whether there was interference with the Claimant’s rights under Articles 10 [freedom of expression] and/or 11 [freedom of assembly and association] of the ECHR and, if so, whether it was justified; and
v) Whether there was a breach of Article 14 of the ECHR [prohibition of discrimination] and, if so, whether that was justified.

Do read the judgement, as it seems carefully reasoned, but I will attempt to fairly summarise the conclusions.

In relation to Article 8, the judge said it seemed to him that “there was no interference with the Claimant’s rights under Article 8(1) by the taking and retention of these photographs”, but “if there was an interference with the Claimant’s rights under Article 8(1) it was in accordance with the law and proportionate for the purposes of Article 8(2) of the Convention.”

In relation to Articles 10 and 11, there seems to be no dispute about whether or not there was an interference at the AGM itself (there was not) – it is what happened after that: “The Claimant alleges that the police conduct had an intimidating effect on him which tended to inhibit his willingness to exercise such rights in the future.”

The judge said, “I cannot accept that the actions of the police here amounted to an interference with either of these Convention rights. As already mentioned in another context, the provisions of the Convention are not designed for the protection of the unduly sensitive.”

But is someone “unduly sensitive” if they are intimidated by such actions? I don’t believe so – I believe the majority of people would find such actions intimidating. I don’t believe they would be “unduly sensitive” – it is just a normal and expected reaction.

Well, the judge disagrees: the actions of the police were “sufficiently justified”.

Lastly there is no engagement of Article 14:

The Claimant alleges that he was discriminated against in comparison with other persons who were present on this occasion and others attending the AGM. However, the reasons why the police took the photographs and acted as they did were not relevant to those others. The police actions were not taken because of the Claimant’s political beliefs or because of his attendance at the meeting to exercise freedom of speech or his rights of assembly; they were taken for the reasons already identified which did not apply to those attending the meeting generally.

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4 Responses

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  1. Shadowfirebird said, on May 23, 2008 at 2:49 pm

    To be fair, if I had been present and taken photographs of the claimant (presumably outside the venue was a public place) then it would have been entirely legal.

    OTOH if I had two policemen following me I would certainly feel harrassed.

  2. ukliberty said, on May 23, 2008 at 2:55 pm

    Agreed on the first part, and I agree there is no interference with the right to privacy (the judgement is rather more detailed with lots of authorities, eg on the Naomi Campbell case where it was a bit more complicated).

    But on the second part, would you say that that feeling of being harrassed constitutes an interference with your Article 10 & 11 rights?

  3. Shadowfirebird said, on May 23, 2008 at 4:16 pm

    Let me see if I have this right (sic):

    10 is freedom of expression? That doesn’t sound correct. I can’t see that being endangered here.

    11 is freedom of assembly? Well, I suppose that’s just about possible, but you’d have to show that the police were breaking the law, wouldn’t you? Since this is a “qualified right”.

    The problem is that the police didn’t stop the claimant from actually doing anything. In a fair world people should have the right to carry on lawful business without undue interference from the police, but I’m not sure that we have that right in this country — shame.

  4. ukliberty said, on May 27, 2008 at 10:43 am

    The problem is that the police didn’t stop the claimant from actually doing anything.

    The claimant found it “extremely upsetting” and that he “felt shaken and frightened as a result”. If he is so intimidated that he does not feel free to exercise those freedoms – “The Claimant alleges that the police conduct had an intimidating effect on him which tended to inhibit his willingness to exercise such rights in the future” and many other people may feel the same – then to me that constitutes an interference with his (and their) rights.

    It seems to me the judge can see that point, but he thinks such people are ‘unduly sensitive’.

    I suppose they should just put up with being followed and investigated.


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