Can Human Rights And Public Law Expose Abuses Of Police Power?

Yes:

Like all public authorities, the police are required by the Human Rights Act to respect basic liberties such as the right to assemble on the streets for political purposes; they can also be called to account before the Courts for serious and large scale abuses of their statutory and common law powers such as preventing protestors reaching an assembly, ‘kettling’, mass stop and search exercises, unjustified arrests and unlawful retention of DNA, fingerprints and other personal information.

Bindmans has an exceptionally strong record of taking – and winning – cases of this kind at all levels from the county court, High Court to the Supreme Court and European Court of Human Rights. 

Our recent protester cases include:

• R (Laporte) v Chief Constable of Gloucestershire and others  [2006] UKHL 55 – a test case taken by John Halford to challenge the policing of an anti-war demonstration at RAF Fairford in 2003. The House of Lords ruled that the claimants’ Article 10 and 11 ECHR human rights to freedoms of speech and assembly were breached and that peaceful protest can only be prevented in the most extreme circumstances, a development the most senior House of Lords judge, Lord Bingham, described as a ‘constitutional shift’. 
• R (Rubens and McClure) v. Metropolitan Police Commissioner (CO/6880/2009) – a challenge to a police decision to unlawfully arrest, search, handcuff and film over 60 peaceful protesters gathered inside a social centre at Earl Street during the 2009 G20 protests. Gwendolen Morgan and Stephen Grosz acted for the majority of the protesters, who were awarded damages resulting out of their treatment by way of civil claims. The police also agreed to destroy the films and photographs of the claimants and not place their data on the Police National Computer.
• John Halford acts in Lowenthal and O’Shea v UK, the ongoing European Court of Human Rights case about the general legality of ‘kettling’ of non-violent persons at Oxford Circus during the May Day 2001 protests. .
• In R (McClure and Moos) v Commissioner of Police for the Metropolis John also represented a number of activists who were kettled and beaten while protesting at the April 2009 G20 Climate Camp. On Thursday 14 April 2011, the Divisional Court ruled that the use of kettling and force against 4000-5000 represented an unlawful policing operation. Offensive “shield strikes”, were ruled “unnecessary” and “unjustified”. Instructions to subordinate officers were “not satisfactory very general and imprecise”. During the course of the evening “officers declined to release people who should have been released.” Police evidence given direct to the Court by the senior officer responsible for the operation, CI Johnson, that groups within the Climate Camp were intent on disorder and criminality was “not… convincing” according to the Court. 
• R (Morris, E and T) v Chief Constable of Kent Police [2009] EWHC 2264 (Admin) - a judicial review of the Kingsnorth Climate Change Camp policing operation brought by John Halford on behalf of the well-know activist Dave Morris and 11 year old twins. The secret police policy of subjecting those who wanted to pass through and join the protest to multiple stops and searches of was ruled to be unlawful and a breach of protestors’ Article 8, 10 and 11 rights. A civil claim arising out of the successful judicial review was settled with a significant payment, an apology and Kent’s agreement to disseminate an agreed letter setting out the ‘lessons learned’ to all other UK forces.

Is there a case?

It is always important to seek advice from a public and human rights law specialist at the earliest stage where you think you may have a claim for judicial review against a public body. This is because under the court rules, judicial review claims must be brought promptly and in any event no later than 3 months from the date of the decision/action being challenged. It also takes some time to arrange funding and prepare a claim for submission to the Court.

If you are bringing a claim under the Human Rights Act 1998, your claim should be issued within 12 months of the date of the decision under challenge (except where judicial review is used, in which case the tighter time limit above applies). 

Judicial review is not always appropriate in challenging the policing of protests. As a general guide, it will be appropriate where there is an apparently unlawful policy or decision which: 

• affects a large number of people (such as a kettling decision or a mass arrest for some unlawful purpose);
  has caused significant injustice/ seriously infringed civil liberties
• was not made in circumstances where the key facts are disputed by the police and difficult to prove one way or the other (cases of this kind will normally need to be pursued in the County or High Court where live evidence is more common).

Judicial review is a discretionary remedy of last resort. The court will only look at your case if there is no alternative remedy available. As a rule, judicial review will not be appropriate in cases concerned with:

• an isolated, less serious incident of police misconduct
• seeking compensation for an injury or false imprisonment (in this case a civil action against the police is likely to be more appropriate – Please click here)