Protests and the misuse of bail conditions

Over the past few years civil liberties lawyers and campaign groups have seen a growing number of demonstrations where police have made mass arrests of protesters. These protesters are then bailed to return to a police station pending a decision on charge, yet in many cases only a small minority of those originally arrested go on to be charged.

The bail conditions imposed are often very stringent and may include restrictions prohibiting return to certain geographical areas, including specific areas or boroughs associated with ongoing protests or restrictions on being able to associate with certain groups of people in public.

The growing use of strict pre-charge bail conditions in the protest context is a worrying trend that has also been condemned by campaign groups such as Netpol and by a UN Special Rapporteur on the rights to freedom of peaceful assembly and of association. We are concerned that the tactic of mass arrest is being used as a way to deter protesters and allow biometric data to be gathered.

As well as affecting protest activity, the use of stringent bail condition that impose serious restrictions on the private lives and freedom of movement of individuals can cause serious disruption to personal lives. Our firm represented at least seven clients who were arrested for obstruction of a bailiff contrary to s178 of the Town & Country Planning Act (a non-imprisonable offence) at the Dale Farm eviction in 2011. After being bailed to return all were offered cautions, reflecting the minor nature of the offence, which some accepted. Others did not and prosecutions against them were ultimately discontinued.

After being interviewed, these clients were all bailed for two months pending a charging decision (in one case, the period was extended) and all given strict blanket bail conditions including a prohibition from entering the whole county of Essex. The bail conditions appear to have been applied indiscriminately to those arrested and released on bail and constituted a serious restriction on the clients’ freedom of movement and in some cases, their rights to freedom of expression and / or assembly. As a result, a number were caused particular difficulties such as being prevented from acting as legal observers, offering practical support to the travellers, from posting meaningful updates on social media, and in the case of one protester, from returning to his address (he had been living at Dale farm and did not have an alternative address).

Protesters can remain on bail for several months under severe restriction. Bearing in mind that these restrictions often apply to a large group of activists, the ability to protest can be effectively removed for a period – as seen in protests against the British National Party and English Defence League in 2013. The first of these saw a number of protesters bailed on the condition that they were “not to organise or participate in any protests or demonstrations” and would ”not to enter Parliament Square, Trafalgar Square, Whitehall or Millbank”, while the second saw restrictions on engaging in any demonstrations within the M25 where a number of named far-right groups were present. We consider it is problematic for a condition of this nature to be applied across the board, particularly to protesters of good character and / or who have no history of committing offences on bail.

Protesters can attempt to challenge their bail conditions where they are considered unreasonably wide or strict, by directly contacting the police in the first instance or applying to the Magistrates’ Court for a variation if this is refused. This has been done successfully in a number of cases, including those imposed in relation to the Royal Weddings “squat raids” in April 2011. This process takes time however, and some protesters may be unaware of the possibility without taking legal advice.

The recent announcement by the Home Secretary on restricting the length of bail terms is welcome, as it would at least put a time limit on bail restrictions. This would avoid the situation of protesters being on bail for extended periods, as was the case in with the anti-BNP protesters whose bail conditions (albeit with minor variations in some cases) remained in force for around three months.

We consider, however, a review of the nature of bail conditions imposed is required in addition to looking at their duration. In many of the examples cited above, having bail conditions of this nature even for a limited period would still have caused significant disruption to the individual’s private life and / or restrictions on their ability to protest. The over-use of strict bail in the protest context suggests that rather than being used in situations where there are genuine reasons to suspect the individual will fail to surrender, commit further offences on bail or interfere with witnesses, they are, instead, being used to prevent further participation in protest. This suggests a worrying conflation of protest per se – or at least of any protest causing a degree of disruption – with criminality.

The right to protest is fundamental in our democracy. Of course it is important that police have the necessary powers to effectively manage protest situations where real criminality arises, but these should not be misused and should not be employed as a tactic to restrict the lawful right to peaceful protest.

This article first appeared in the Law Society Gazette.

Co-author of this article, Natalie Sedacca, is a PhD Candidate in the UCL Faculty of Laws writing on behalf Hodge Jones & Allen.