As a police station representative in the United Kingdom the impact of the Black Lives Matter (BLM) protests is eliciting a negative reaction in police stations from police officers. A recent case illustrates a concerning effort from the police to erode the right to protest.

A client arrested during the BLM protest in London was released on bail pending further investigation, not before a challenge from the police to impose a condition that the client was not allowed to participate in any further protests. This attempt by the police to impose such a draconian condition upon a citizen demonstrates the reactionary nature of the police.

The client was arrested on allegations of assaulting a police officer and breaching the peace. The latter allegation was due to the Coronavirus Regulations 2020 which made it an arrestable offence to congregate in a large group where social distancing was not being adhered to. The protest in London outside the Houses of Parliament on 31st May 2020 consisted of almost 100 protestors. The client was kettled and upon trying to leave the police cordon was arrested for breaching the peace. It should be noted that approximately 32 people were arrested under the Coronavirus Regulations 2020, which included the client, but others attending the protest were not arrested.

Once the police interview was complete the client was released under bail conditions. This happens when the police or prosecution are unable to make a charging decision, due mainly to lack of evidence. The client therefore only has allegations made against him, but there is not enough evidence to make a positive charging decision. The client is therefore deemed to be innocent until proven guilty. Even if he were to be charged, he would still be deemed to be innocent until he was to be found guilty by a court of law. It was therefore a surprise to have the police officers involved seek to impose a bail condition that he was not allowed to participate in any further protest.

The right to protest is a fundamental constitutional right guaranteed under the European Convention of Human Rights. When bail conditions are being determined by the police it is a balancing act, they must ensure that the conditions are proportionate and reasonable in light of the alleged offence for which the citizen has been arrested. It was unreasonable and disproportionate to impose a condition that infringed on the client’s constitutional right to protest for a period of time when he was not found guilty yet of any of the allegations made by the police.

A challenge was made to superior officers where the basis of such a condition was sought. It was only after further representations were made that the police conceded and removed such a blanket condition.

It is interesting that England is in a grey area regarding the right to protest in light of the Regulations. The balancing act public authorities must weigh is the health concern for which the Regulations were enacted on one side and the right to protest on the other. There has not been a blanket rule imposed by police officers, as they have exercised their discretion to decide when one is breaching the Regulation rules. In such situations, police have issued fines or arrested people, but in other situations the officers have dispersed large crowds.

There has been widespread media attention in the UK regarding people hosting parties, going to parks to sunbathe or visit natural tourist sites, and in most situations the officers have exercised their discretion to merely disperse crowds. In view of implementing a fair application of the law it could be argued that the arrests of 32 protesters is a selective application of discretion when those in other situations have not been arrested. There is currently a heightened level of scrutiny on police actions and the arrests of BLM protesters whilst ignoring sunbathers in parks. This may push a further negative impression of the police onto the public.

Now more than ever, fundamental rights to protest and assemble are garnering media attention across the world. Whilst it is acknowledged that the police are working under difficult circumstances, it is disappointing that their base mindset has been to almost ignore the balancing act of a citizen’s rights against prevention of crime. It is important for lawyers and civil rights organisations to remain vigilant throughout their work to ensure rights are protected.

Samir Pasha is a lawyer specializing in Human Rights and Criminal Law. He qualified as a barrister and was a Middle Temple Scholar recipient, a Human Rights Law Association bursary winner for his work in the West Bank, occupied Palestinian Territory, and holds a masters from the University of Oxford specializing in modern South Asia.

Naga Kandiah is a Human Rights and Public Law solicitor. He has also worked with war crime witnesses and victims of torture. Mr. Kandiah also regularly represents vulnerable clients with severe mental or physical health issues, having successfully acted for clients in complex asylum, deportation and entry clearance appeals.

Suggested citation: Samir Pasha and Naga Kandiah, Eroding the Right to Protest in the UK, JURIST – Professional Commentary, June 4, 2020, https://www.jurist.org/commentary/2020/06/pasha-kandiah-blm-protest-rights-uk/.

This article was prepared for publication by Tim Zubizarreta, JURIST’s Managing Editor. Please direct any questions or comments to him at commentary@jurist.org