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To arrest or not to arrest: the misuse of police powers at anti-monarchy protests

In light of recent anti-monarchy protest arrests, The Glasgow Guardian scrutinises ever-growing police powers in the UK.

Mourning the death of Queen Elizabeth II, much of the country contemplated her personal legacy with fondness and poignancy. It was clear a connection had been severed; a life so many treasured taken away, just like that. But it is only because of the monarch’s place in our constitution that such emotions, those synonymous with personal loss, were ever evoked. The death of the queen, and the accession of King Charles III, were only global news because our political system chose to make it so. As Lewis Goodall pointed out on The News Agents podcast, the inherently political nature of the monarchy means that there will be those who disagree, and do not consent. Since republicanism is not credibly represented at the ballot box, only protest can provide a means to express dissent and disapproval. It is therefore fundamental that any curtailment of such protest is proportionate and justified, and that policing is accountable and responsible. It is Parliament, and again, our politics, that chooses to grant the police the powers that they have, so it is our politicians who are ultimately responsible where the use of such powers yields injustice.

What binds a 22 year-old man being charged after heckling Prince Andrew in connection with breach of the peace, or the lawyer Paul Powsland being threatened with arrest under the Public Order Act 1986? It is the police – properly or improperly – using their discretion. R v Howell defines the criteria for breach of the peace as where a person is injured, a person fears being injured, or a person’s property is damaged in their presence. Meanwhile, section 5 of the Public Order Act 1986 creates an offence where someone uses “threatening, intimidating, insulting words or behaviour”. Whether holding up a sign saying “Not my king” constitutes an “insult” undermining public order, or some unpleasant heckles are deemed “intimidating”, will ultimately differ from one police officer to the next. There also lies the confusing case of Symon Hill. He was told he’d been arrested under the new Police, Crime, Sentencing and Court Act, but in a statement to the Guardian, Thames Valley Police said he had actually been arrested under the Public Order Act 1986. Under this umbrella of isolated incidents lies a worrying trend: the police not properly using, or not knowing how they should properly use, the powers they have been given.

The presence of heavy-handed policing at protests is not a new phenomenon, but a culmination of controversial and incomprehensible decisions which partly explains why confidence in the system is at a record low. Here in Glasgow, it was reported during COP26 that “one activist operating in a police liaison capacity was given an identifying blue bib to wear by organisers, but later had it confiscated by a police officer and was threatened with arrest for impersonating a police officer”. This followed the Metropolitan Police’s use of section 14 of the Public Order Act 1986 to ban Extinction Rebellion’s 2019 autumn uprising, which the High Court ruled unlawful. But most concerning of all was the handling of the vigil for Sarah Everard at Clapham Common last March, where images and videos of attendees being detained, restrained and handcuffed by police officers were widely circulated on social media. The High Court ruled that the Met Police had breached the Article 11 rights of those at the vigil, criticising their use of coronavirus legislation to forcefully break up the event.

The problem of police discretion being applied dangerously and inconsistently comes to the fore here, since vigils were allowed to occur peacefully all over the country, such as in Nottingham and Leeds, but it was only at Clapham Common that the supposed breach of lockdown regulations were enforced. While the swathes of hastily drafted coronavirus legislation were authoritarian in themselves, their ambiguities and inconsistencies ultimately led to the police being afforded significant power by Parliament. Their discretion led to two women being fined £200 for driving five miles to take a walk, while the officers at the scene disallowed their hot drinks because they constituted a “picnic”. It’s the same issue we saw with Paul Powsland and what constitutes “insult” under the Public Order Act 1986; Parliament including ambiguities in legislation, and leaving it to the police to interpret what they mean.

But it would be wrong to classify the coronavirus laws as a one-off, because more recent legislation follows the same trend. In section 78 of the Police, Crime, Sentencing and Courts Act (PCSC) 2022, a person commits an offence if they cause “serious annoyance”, which is for the police themselves to determine. This has resulted in Steve Bray, the man who shouts about Brexit outside Parliament, facing prosecution and having his equipment seized, because police officers now have the power to set noise limits for public protests.

Perhaps the reason for this is that political parties do not engage with policing as an area of policy; instead the police represent merely a means to achieve the political necessity of being seen as tough on crime. Hence the Tories will argue that the police need more powers, while Labour will argue that the police need more funding. This binary overlooks that underfunding under David Cameron permanently deteriorated the functioning and competence of the police service, so the sustained misuse of powers prevailed even as the number of officers started to increase again under Boris Johnson. Alas, the Tories’ instinctive solution was to provide them with more powers. All the while, Labour continue to diagnose spiralling crime and immigration with the underfunding of enforcement, a fundamentally authoritarian approach but dressed up as liberal statism. This explains why their 2017 general election manifesto pledged to recruit 500 more border police, and their 2019 European election manifesto promised 10,000 more bobbies on the beat, despite this being outwith the remit of MEPs. Should the party assume power and the police be given more funding, but crime prevails within the same broken model of policing, they will be forced to succumb to the alternative solution of ‘more powers’, so the cycle feeds itself.

Richard Garside of the Centre for Crime and Justice studies argues that the current crisis in policing results from there being “too many officers engaged in activities that have nothing to do with them. In little over a decade, the police presence in schools has gone from occasional to routine. It is just one example of a police mission creep that now touches virtually every area of public service”. But the removal of the police from these settings will be seen as ‘soft on crime’, hence neither party will go near it, and police reform as a whole will be kicked into the long grass.

But just as flattering the police is a valuable vehicle for political parties to appear tough on crime, the monarchy is an effective way for them to show that they love our country. This results in the queen being hailed as apolitical, despite the royals vetting more than 1,000 laws via Queen’s consent, and explains the bizarre portrayal of delegates singing the national anthem at Labour conference as a win against ‘unpatriotic’ socialists. Such is the respective electoral importance and expedience of retirees and young people that only the pro-monarchy views of the former are attended to by political parties, while any critical engagement with the royal family is shut down.

Our politicians’ acceptability of the anti-monarchy arrests therefore demonstrates an assumption of perpetual consent from political parties of both policing and the royal family as they currently are. It explains the leader of the Labour party exercising greater criticism of the protestors than those eroding their right to protest, despite his authoring of textbooks on the limits of police powers. The arrests put into perspective the creeping normalisation of a police service incessantly fed more power by a political system unwilling to seriously engage with it, and nothing being done about the misuse of those powers because it would be politically difficult. Andrew Marr recently said on LBC that a “monarchy which can’t survive some pieces of paper and bits of cardboard is a pretty flimsy thing”. But the current approach of our politicians and our police, to try and criminalise dissent rather than engage with it, will only generate more dissent. That will help neither the police nor the monarchy.

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