12th May 2014

Now that all the trials arising from the Balcombe anti-fracking protests are over, Ruth Hayhurst – who attended almost all the cases – reflects on what the policing strategy sought to achieve.

For nearly 70 days last summer, police officers were on duty outside (and sometimes inside) Cuadrilla’s oil exploration site at Balcombe. They said their role was to facilitate peaceful protest.

During the protests, a total of 126 people were arrested, leading to 114 charges. Many charges were dropped before they came to court. A few were dismissed during trials and most resulted in acquittals.

With all the cases now over, only 29 charges (guilty and not guilty pleas) resulted in convictions. This is well below the average conviction rate of 85 per cent for the Crown Prosecution Service– and it could fall further because six people are currently appealing against guilty verdicts. Of the people who were convicted or who pleaded guilty, fines and costs are thought to have totalled about £6,000.

The policing operation cost nearly £4 million. The cost of the legal action is not yet known. But it is likely to be high, given that the trials lasted more than 30 days and more than 50 police officers spent at least one day in court giving evidence.

So what did the policing strategy seek to achieve?

The objective

Chief Superintendent Paul Morrison made this statement on May 1^st, the day the poet Simon Welsh was acquitted of a charge under Section 14 of the Public Order Act:

“We recognise that people have a democratic right to peacefully protest in the UK and that public protests have been and continue to be an important part of British life. Protests are an important safety valve for strongly-held views and the right to protest in public is a synthesis of iconic freedoms: free assembly and free speech. In policing these events we have the difficult job of trying to balance these rights and freedoms with those of the local communities, as well as those conducting their lawful businesses.”

Finding out how the police proposed to balance those rights and freedoms – and whether they were successful – has been difficult. So far Sussex Police has refused requests under the Freedom of Information Act for:

• Strategy documents
• Briefing documents
• Balcombe community information document
• Minutes of meetings
• Correspondence with partners

Last week, the force’s press office refused a request to release the review of the operation by Hertfordshire Police. The Sussex Police and Crime Commissioner also declined to comment.

However, evidence about the policing operation did emerge at the trials. And anti-fracking campaigners, local politicians and lawyers have been willing to discuss what happened.

Deterring protesters

Superintendent Jane Derrick gave evidence that Sussex Police consulted a human rights lawyer about the operation at Balcombe. The purpose, she said, was to ensure that the operation did not infringe the rights of freedom of speech and assembly granted under Articles 10 and 11 of the European Convention on Human Rights.

Despite this, the MP, Caroline Lucas, who was acquitted on a Section 14 charge and for obstructing the highway, believed there was a policing strategy that was “designed to deter people from the right to protest.”

In an interview published after her acquittal, she said: “I think that is deeply concerning. In this country we have a long and honourable tradition of peaceful protest. It is something that has been absolutely fought for and we need to protect it, and it is being chipped away here.”

Commenting on the policing policy, she said: “I think the signal that it gives out to ordinary people is that you risk arrest simply by taking part in a peaceful protest.”

So what is the evidence that policing at Balcombe intended to deter protest, or had that effect?

1. Arrest techniques

Police used a number of techniques, particularly pressure-pointing, that, it was argued during the trials, caused distress and confusion to protesters.

A 56-year-old woman, who was later acquitted, told her trial about the effect of seeing someone in her group being pressure pointed. “It had been unexpected. It was very unpleasant. It really threw me,” she said.

A 30-year-old man, also acquitted, was photographed being pressure pointed and his picture appeared on many national newspaper front pages. He told his trial: “I was raised to believe that if you were harmed or in trouble the police were there to help and protect you. This had a very long-lasting effect on me”.

There were suggestions that some arrests were targeted and sometimes at high-profile people, such as Caroline Lucas. Police officers certainly gave evidence that they were instructed to arrest particular protesters.

On other occasions, arrests appeared to be arbitrary. On August 19^th, for example, in a group of people behaving in the same way at the same time and place, some were arrested and taken into custody, some were arrested and then de-arrested, and some were moved from the area and left alone.

There was also evidence that people were arrested for actions that had, apparently, been tolerated for several hours before. Superintendent Jane Derrick, the tactical commander during the period of the Reclaim Power Camp, gave evidence that she wanted “no surprise policing”. But people frequently gave evidence that they were arrested without being warned or given a reason. A 50-year-old woman, who was also acquitted, told her trial “I had never seen anything like it. The police were allowing us to protest and then suddenly they were hurting us.

2. Mass arrests

On at least two days, large numbers of people were arrested. The Sussex Police press office released details that 16 people were arrested on the second day of the protest (July 26^th) and about 30 on August 19^th, the Day of Action by Reclaim the Power.

Solicitor Lydia Dagostino, whose firm Kellys represented many of the people arrested at Balcombe, has specialised in protest-related work and has done so for 20 years. She said: “When there are mass arrests, it is inevitable that a broad range of people get swept up by the police. This can alienate people and put them and others off from going to even the most peaceful of protests”.

3. Bail conditions

Early in the protests, people who were arrested received bail conditions that excluded them from an area of about 25 sq km. This included the site entrance, Balcombe, surrounding villages and a section of the railway line from Brighton to London.

The conditions were successfully challenged but Lydia Dagostino said: “Blanket conditions are unlawful and are, in effect, an injunction by the back door. It is completely disproportionate to impose a vast exclusion zone on somebody charged with a non- imprisonable offence arising out of a peaceful protest”

4. Time in custody and processing arrests

People who were arrested for minor offences have described how they were held in custody for long periods of time. A 52-year-old man, arrested at about midday on July 26th was held in custody and finally interviewed at 00.45am the following day. A 56-year-old woman in a separate trial said she was held for more than 12 hours. Both were later acquitted. A woman whose case did not come to court said she was held for 22 hours.

Defendants also described inconsistencies in their treatment at police stations. One woman, who pleaded guilty, said she was not offered a caution when another person, who had been taking part in the same activity at the same time and place, was. A 34-year-old woman described how she did not have legal advice because she was told she would have to wait longer to be interviewed if she wanted a solicitor to represent her.

A 52-year-old man gave evidence that he was offered a choice: make a phone call to a solicitor or be released without charge. He told his trial: “I decided to make the phone call and they said ‘You will now have to go into a police cell.’”

5. Use of charges with severe maximum penalties

Early in the protests, 30 people were charged under an obscure law, Section 241 of the Trades Union and Labour Relations (Consolidation) Act, which carries a maximum sentence on conviction of six months in prison.

Of the 30, 25 saw their charges changed before trial to offences which did not carry a custodial sentence. Of the remaining five that went to trial, two had their charges dropped part way through the case and one was acquitted. Only two were convicted – one was conditionally discharged for 12 months and the other fined £200.

Despite this, one of the barristers involved in their case, Srikantharajah Nereshraaj, said the convictions “might embolden the police to start charging this offence more routinely and against a large number of protesters”.

“The danger is that unlike offences, such as obstructing the highway, for which the maximum penalty is a fine, this offence carries a maximum penalty of six months imprisonment.”

Police response

We asked Sussex Police to comment on Caroline Lucas’s suggestion about deterring protests. The force made the following statement:

“This is not correct. The protest was facilitated at a point chosen by protesters right outside the entrance to the drilling site and even when a Section 14 notice was put in place, assembly was still permitted very close by and in view of the entrance. The operation sought to balance the rights of those wishing to peacefully protest, those seeking to conduct their lawful business and those wishing to use the highway unobstructed for their normal day-to-day activities.”

We also asked the force to respond to evidence given in support of this suggestion.

On the bail conditions, Sussex Police conceded: “Police sought bail conditions restricting the ability of those who had been arrested to return to the area of the protest. These were not granted (or where they were, overturned) by the courts.”

On the use of pressure point arrests, the statement was: “This is a recognised and nationally-accepted public order policing tactic for which officers are specifically trained. It is only used after repeated verbal requests to move and as soon as the person who it is being used on complies, the pressure is reduced and released.”

On targeted arrests: “Those arrested were people whose activities warranted police action. This was entirely dependent on the individual and not whether they were ‘high profile’.”

On arbitrary arrests: “It is not in anyone’s interest for mass arrests of all those involved. Where people comply after being warned, or their conduct, although initially obstructive, is stopped when this is pointed out, then we would not seek to arrest. Peaceful protest was facilitated for more than two months. On average, fewer than two arrests a day were made, with no arrests on most days.”

On surprise arrests: “Police were prepared to tolerate some actions in order to meet our role of facilitating peaceful protest. However, at some point, for example when a highway is blocked, we have to also meet the needs of other parties involved (and not involved) and if people do not then co-operate with our requests, arrests are made.”

On long waits in custody: “Anyone taken into custody for any offence is dealt with as expeditiously as possible. The time that they are in custody can be affected by a number of factors.”

Sussex Police said people may have needed to wait longer in custody if they wanted to speak to a solicitor. The statement said this would happen “if the duty solicitors were busy or the arrested person wished to nominate a solicitor.” The statement added “Neither is within the control of the police”.

The force refuted the evidence given in one trial that somebody would be charged if they asked to speak to a solicitor but released if they did not. On inconsistent cautioning and charging policy, the statement said: “There are thresholds for cautioning and charging. Without knowing which arrested people you are referring to, we are unable to provide a detailed response.”

Testing police protest techniques

Documentary evidence disclosed during the trials hinted that Sussex Police planned to produce briefings from the Balcombe protests. These would be distributed to other forces which might face similar policing issues in future. So was the force testing the use of particular charges?

1. Section 241 of the Trades Union and Labour Relations Act

This legislation has most commonly been used against secondary picketing, rather than environmental protesters, though it was used against Newbury bypass protesters in the late 1990s. At least one police officer at the Balcombe trials gave evidence that he had not come across it before the anti-fracking protests.

Barristers specialising in protest law rarely experience it either. Srikantharajah Nereshraaj, one of the barristers in a Balcombe Section 241 case, said: “I’ve been representing protesters (mainly anti-war, anti-fascist, student and environmental) for about five to six years and this is the first time that I or even people like Tom [a colleague] (who’s been doing it for about 10 years) has come across its use.”

Despite this, Sussex Police charged 30 people with Section 241. When asked why this legislation was used, the force said: “The activities of those taking direct action are considered against a wide number of offences relating to disruptive activity.”

2. Section 14 of the Public Order Act

Section 14 allows the police to issue an order which sets conditions on protesters. At Balcombe, Sussex Police issued two orders, which required protesters to use designated protest areas. The orders covered the periods August 16-22 – the Reclaim the Power camp – and September 10-27^th – the final days before Cuadrilla’s planning permission expired.

There were at least 22 arrests of people under both Section 14 orders. Eight cases were dropped before coming to court. Of those that did go to court, none resulted in a conviction.

Solicitor Lydia Dagostino said she had never had a conviction on a Section 14 charge. “Section 14 is a complicated offence and in my experience the police often get it wrong”, she said “The cases are often dropped before they get to trial as there is close scrutiny by the defence of police powers and the decision making process.

“It was surprising that those arrested on 19th August were prosecuted with such vigour as the defence pointed out from day one that the police had got it wrong but for some reason they dug their heals in.”

The two District Judges who ruled on the legality of the Balcombe Section 14 orders said both orders were unlawful because of the way they had been written and enforced. DJ Tim Pattinson, ruling in the case of Caroline Lucas, said the conditions were “so vague and unclear as to be meaningless”.

When asked why Sussex Police had used hard-to-prosecute charges, the force responded: “Section 14 was granted as there was very credible information that more serious disorder was likely. We need to be absolutely clear our role is to facilitate protest but we cannot allow serious disorder and/or violence to break out.”

When asked if the force had produced a briefing document, Sussex Police said “We have lessons learned taken from a number of sources. They are not being collated into one single document, but are being taken forward in planning for any likely protests that may occur in the future.”

We asked if there was a document whether we could see it. The response to our question was “Not applicable”.

Flawed implementation?

If there was a strategy, there was also evidence from the trials that policing at Balcombe didn’t always go according to plan.

On the first day of the protests, campaigners said there were no police at the scene until they were called by the driver of a vehicle which had been disabled by having its brake cables cut.

Both Section 14 orders were ruled to be unlawful. There were also problems implementing the order issued in August. Superintendent Jane Derrick gave evidence of the instructions she issued to officers on the ground:

• Notices should be displayed about the order. They weren’t.
• Protesters should have been given written copies of notices. That didn’t always happen.
• Protesters who were not locked-on should have been taken to a designated area and de-arrested. That didn’t happen. One PC said “When I arrest people generally they go to custody”.

Some police officers gave evidence that they did not know the location of the designated protest area, imposed under Section 14.

Other officers described how they were working shifts of 12-14 hours, in hot weather, with not enough to eat or drink.

Despite the Section 14 orders, police continued to allow protesters to escort lorries up to the gateway of the site. When the Section 14 orders were enforced, there were complaints that this was not sufficiently explained.

MP Caroline Lucas said: “The communication side of the strategy was woefully inadequate. Time and again, police gave evidence saying that people should have understood what a Section 14 was. Well, over the last few weeks I have understood what a Section 14 was but even I, as the local MP, didn’t understand exactly what a Section 14 was and under what conditions it could be implemented.”

Calling to account

This week (May 16^th) the temporary chief constable, Giles York, will be questioned on how Sussex Police deals with public order events, including protests. The issue will be raised at the monthly performance and accountability meeting with Katy Bourne, the Sussex Police and Crime Commissioner (SPPC).

The Commissioner’s press officer said some of the issues raised in this article will be “tackled thematically during this meeting.”

The meeting will be webcast live and recordings can be accessed through the SPCC website.