It is unusual for the police to publicly express regret at arrests that turned out to have been unjustified. People are often arrested, questioned and then released without charge. Provided the arrest was lawful at the time, that’s normally the end of it.
It must be even more unusual for senior officers to visit the home of an arrested person and offer a personal apology. But that’s how they responded to Graham Smith from the anti-monarchy group Republic, he said yesterday.
Explaining what happened, Scotland Yard issued a statement last night. It described an incident that began at 6.40am on Saturday:
Officers working as part of the security operation in central London observed a group of people unloading items from a vehicle on St Martin’s Lane in Westminster close to the restricted zone near the Coronation procession route. Taking into account the information that people were seeking to seriously disrupt the event, and the significance of the security operation, officers had been briefed to be extremely vigilant and proactive.
They searched the vehicle and, as well as a large number of placards, found items which at the time they had reasonable grounds to believe could be used as lock-on devices. Taking into account the information they had, and the overall concern regarding security, six people were arrested on suspicion of going equipped for locking on, contrary to section 2 Public Order Act 2023. One man was also arrested for possession of a knife/pointed article.
It was not clear at the time that at least one of the group stopped had been engaging with police protest liaison team officers ahead of the event. The protest liaison team were not the arresting officers nor were they present in St Martin’s Lane at the time of the arrest.
The investigation team have now fully examined the items seized and reviewed the full circumstances of the arrest. Those arrested stated the items would be used to secure their placards, and the investigation has been unable to prove intent to use them to lock on and disrupt the event. This evening all six have had their bail cancelled and no further action will be taken. We regret that those six people arrested were unable to join the wider group of protesters in Trafalgar Square and elsewhere on the procession route.
Smith was one of those arrested. He said had spent months consulting with officers — presumably from the protest liaison team — about his group’s plans. Despite this, he was detained for 16 hours and missed the opportunity to hold a public protest during the Coronation. He and his group had never intended to be disruptive.
Video taken during the arrests in St Martin’s Lane suggests that the officers responsible were from the Metropolitan Police territorial support group. They were not rookie officers brought in from another force. What went wrong?
It’s not clear what the police found in the vehicle. The items have been described as luggage straps. The police now say they cannot prove there was ever any intention to use these items to lock on and disrupt the event. But that’s not quite what the law requires.
Section 1(1) of the Public Order Act 2023 creates the offence of locking on.
A person commits an offence if they
attach themselves to another person, to an object or to land,
attach a person to another person, to an object or to land,
or attach an object to another object or to land.
But this is an offence only if it causes, or is capable of causing, serious disruption to two or more individuals or to an organisation. There is no need to prove an intention to cause serious disruption: recklessness is sufficient. There is a defence of reasonable excuse, to be proved by the defendant.
Section 2 of the Public Order Act 2023 creates an offence of being equipped for locking on. It says
A person commits an offence if they have an object with them in a place other than a dwelling with the intention that it may be used in the course of or in connection with the commission by any person of an offence under section 1(1) (offence of locking on).
It’s not necessary to prove that that the person found with the object intended it to use it for locking on. It’s an offence if the person intended it to be used in connection with locking on by someone else.
As I read it, a court might infer that purpose if the object had been specially constructed for the locking on. But when this legislation was going through parliament there were concerns that it might be used against people carrying bicycle locks and chains — which are essential if you use a bike in London — or even items such as plastic cable-ties, superglue or gaffer tape.
The Public Order Act 2023 was passed by parliament exactly a week ago, on 2 May. Regulations were made that day by a Home Office minister bringing sections 1 and 2 — as well as several other sections — into force a day later, on 3 May.
This is unusual for new criminal offences. A couple of months is usually allowed for the Home Office to issue a circular explaining how the new offence is to be used. Those at risk of committing the new offence — people who carry bicycle locks, for example — can learn how the law has changed and seek legal advice. Police forces have time to train their officers. Police lawyers might regard items that can easily be cut — luggage straps or cable-ties, for example — as not capable of leading to serious disruption.
Only a day’s notice was given on this occasion, presumably so that the new law could be used against anyone intending to disrupt the Coronation. Home Office officials apparently wrote to demonstrators but it is not surprising that the subtleties of the new law did not filter down to front-line police in time.
Yet again, we see that rushed legislation is bad legislation. If parliament had intended sections 1 and 2 to take effect a day after the legislation was passed, it would not have required the minister to make a commencement order. It specified for example that section 16 of the act, dealing with assemblies and protests, would come into force two months after the act was passed.
More fundamentally, going equipped for locking on is drawn far too broadly. Criminalising people who cause serious disruption by locking on may be a proportionate response to a current problem. If that’s so, those who intend to commit the offence might reasonably be arrested. But carrying an item with the intention that someone else might use it in connection with locking on is surely going too far. And carrying an item that could not reasonably be used to cause serious disruption is clearly not an offence.
One can sympathise with the Metropolitan Police for erring on the side of caution. But Scotland Yard’s misjudgment — if that is what it was — has given a small group of anti-monarchists much greater publicity than they would have had if they had been allowed to go ahead with their protest.
A Lawyer Writes is a reader-supported publication. To receive new posts and support my work, consider becoming a free or paid subscriber.
Concentrating on the facts, the police did their job and the disrupters were prevented from disrupting our Monarch’s Coronation. Whether detention was lawful is a matter of interpretation and opinion, which police are also entitled to.
Excellent piece Joshua. The references to *intelligence* as a factor in the actions of the police raises huge difficulties for the accused & to me is the major concern. The veil that *national security* considerations draws over important evidential considerations becomes an existential threat to justice otherwise.