These are some extracts of notes made by one of the defendants in the recent successful appeal of three people convicted of obstructing an evidence gathering team outside a meeting. They are almost verbatim, but there will be some small mistakes and edits for clarity.
If you want you can skip to the judgement at the end.
Prosecutor Jonathan Turner: …It seems that officers aren’t allowed to attend until they receive warning from the court. The warning went to the wrong police station. There has been a flurry of activity, and at present we have the photographer Gavin Paul, we have Cowlin, but we are having difficulty locating the other officers. Lloyd is on duty but Pritchard is on holiday.
It is the crown’s view that the case can be be proved by the photographer and the video alone, but my friends will object to that.
Tom Wainwright, Counsel for defendant Barney Laurance: Its up to the crown how they seek to prove their case. The burden of proof is on them.
So are we entitled to explore the issues of why the photos were taken and what would happen to them?
Raj Chada, representing defendant Jeff Parks: It was specifically said that the statements of Discombe and Algar [as used during previous legal arguments about what evidence should be disclosed to the defence] were not agreed. The defence have decided not to call them as it is a matter for the crown.
Jonathan Turner: My view was that because Discombe was challenged and cross examined…
Judge: His evidence was dealt with as a written statement, was it not?
Crown: He was certainly here. I thought of calling him but I didn’t. The decision was made upon his statement.
The first and only prosecution witness, Police Photographer Gavin Paul was called to give evidence.
Prosecutor: What is your occupation?
Paul: I am photographer for the metropolitan police service
Prosecutor: How long have you had that role?
Paul: 32 years.
Prosecutor: You were asked to attend Crampton Street to takes some photos and video?
Prosecutor: Did you attend a briefing about that in advance?
Prosecutor: Were you aware of any authorisation for overt surveillance?
Paul: I can’t remember any being given.
Gavin Paul’s video recording was played. It showed that Paul was attempting to record the entrance to the Pullens centre, and the people coming and going, but was finding it very difficult because of the large banner that Clay, Laurance and Parks were persistently holding in front of him.
Prosecutor: What was the reason for recording these three?
Paul: The only reason these three were in focus was that they were holding a banner preventing us observing the building.
Prosecutor: From the briefing in the morning what had you been told to do with the images?
Paul: Later on the main focus of attention was the bush demo. This was believed to be a planning meeting for that visit. The images, if required urgently, would have been downloaded and passed to commanders policing that demo.
Prosecutor: Did that happen?
Paul: No, it didn’t.
Prosecutor: We can see you had a still camera. Were any images taken used for the demo later on from the stills camera?
Prosecutor: On the video we see PC Pritchard handing Mr. Laurance a document. Have a look at it. Can you read it out, and can it be handed to the bench?
Gavin Paul reads the document:
Overt Filming – Photography
Overt filming or photography is a method used by police officers and police staff to record the features and clothing of individuals for the purposes of preventing and detecting crime and to assist in the investigation of offences.
Police personnel from Walworth contact number 02072503781212 are filming in this area, to prevent the following types of crime: prevention of crime – observation
You are not being stopped or detained for the purpose of filming and are under no obligation to co-operate. Officers do have power in certain circumstances to stop and search persons or vehicles for stolen goods, offensive weapons or drugs and to detain them for the purpose of carrying out such a search. If this power is exercised the officers will explain at the time their reasons for doing so.
If you wish to exercise your right of access to personal data that may be held about you by the Metropolitan Police an application form can be obtained from the police station or from the Data Protection Unit, New Scotland Yard, Broadway, London SW1H 0BG.
if you have any details concerning those involved in any crime, which may assist police in reducing the number of offences occurring, you can call crimestoppers free on 0800 555 111. The process is anonymous and you may receive a reward
Tom Wainwright: There are two questions I want to ask about that, Mr Paul. You read out what was filled in there was the reason – you said “prevention of crime – observation” but in fact is obstruction, do you agree?
Paul: Yes sir.
Tom Wainwright: The guidance or policy is set out in what’s called the Standard Operating Procedure?
I believe so sir.
Wainwright: That the document the S.O.P. changed in summer last year?
I’m not aware of that.
Wainwright: When was the last time you looked at a S.O.P?
When I first did my training several years ago we are told where and when we couldn’t film.
Wainright: The images are forwarded on to CO11, the public order unit at New Scotland Yard?
Wainright: You are not an officer at New Scotland Yard, or part of CO11, so you can’t assist us with what happens to those images at CO11?
Wainwright: Images taken by photographers like yourself are used on those spotter cards?
It is quite possible, yes.
Prosecutor: There are three matters that need to be decided. It may be that not all need to be decided given that answers. The first matter is, can the appellants rely on article 8 when they are filmed in the process of committing an offence and are filmed for evidential purposes as suspects
After a substantial time was taken up with this intervention, the judge retired, and returned with this ruling:
Let me deal with the application by the crown — they asked for three matters to be decided and dealing with the first of those — it seams to me that the question is hypothetical given where we are in this case. The evidence is that the photographer was tasked to photograph those entering the building. The crown submit that it became evidence in an investigation of obstruction but there’s no evidence of that. I’m clear that the defence have set out their case clearly in earlier proceedings and given notice of their intention to argue Article 8 seems that it would be wrong to deal with this issue at this stage given what little evidence we have heard.
Defendant Alex Clay called to give evidence.
Joseph Wright, Solicitor for Clay: how many police officers were there?
Joseph Wright: Can I ask how you know stills were taken?
Initially when I was tried in the magistrates court I was disclosed still images of myself from that day and of Barney Laurance
Joseph Wright: Have you seen them outside a court context?
Yes I saw them on a political website UK indymedia after the Put People First demonstration on March 28th, I think, 2009.
Joseph Wright: And what did you see on that website?
I saw an image of a police spotter card with an image of me, the same image that was disclosed to me, as suspect G on that spotter card
Joseph Wright: Can you give us any info as to why you believe it was taken on the 15th?
It was very distinctive because at the time I had a grown out blond mohawk, and there’s blond highlights in my hair and I’ve got a beard and moustache.
Defence Witness ___________ called.
Joseph Wright: Questions will be about 15th of June 2008. Where were you?
I went in the early afternoon to a meeting of London No Borders for a protest planned to be in Croydon in July, related to the G8 happening in Japan on that day. I went there from Brixton.
Joseph Wright: What happened?
There was a police van at the end of Crampton Street which is where the centre is. There was police standing on the square opposite the centre. There might have been 4 or 5.
I went along past the centre, because I had to pick up the key, and there was police on the other side of the road shouting to me to turn around, because they wanted to take a photo of me. I was supposed to pick up the key around the block, from a person from the housing co-op in the estate.
The police were shouting “hello, and can you please look here”, things like this.
It’s not nice if you’re just walking down the road and the police tries to make a photo of you.
I was originally intending to stop and see if the centre might be already open, that was my original intention, but I passed the entrance to go straight to that lady where I had to pick up the key. I turned around and saw two or one policeman following me.
The followed me around two corners. At this point I was really surprised that they followed me because it was obvious that this centre can be rented by anyone. I was wondering whether not I should actually go to the door to borrow the keys.
I went into the entrance area and knocked the door and had a very quick discussion about the key and how I would return it later. When I went out there were I think 2 policeman on the other side of the road waiting.
Joseph Wright: Did anyone tell you why they were doing it?
No they didn’t tell me.
I went quickly to the actual door [of the community centre], it was difficult to open the locks and then the police who were following me around the corner came to within one or two meters and were making fun of the fact that I wasn’t able to open the door, and were filming with their camera my act of trying to open the lock, which took two or three minutes or maybe five minutes
Prosecutor: How did you travel from Brixton to the Pullens centre?
I took the bus.
Were you concerned about the video recorder on the bus?
Not sure if there was video recorder on that bus.
Prosecutor: Were you concerned about the CCTV on Walworth road?
Yes, actually I am.
Prosecutor: Are you concerned about the CCTV on the underground?
Yes I am concerned about photography in all these areas.
Prosecutor: So do you stay at home all day, being as you are so concerned?
I see a difference between a public CCTV camera and the police taking photos of me because I do something specific.
Prosecutor: Do you know who monitors those cameras on the Walworth Road?
Yes, the council with the police, but they are filming everything not specifically me.
Prosecutor: Had you made arrangements to hire that centre?
I can’t recall who hired it for that day, but I did hire it for some occasions
Prosecutor: How many meetings have you been to with no borders?
For a couple of years.
Prosecutor: How many a year?
In Britain maybe five.
Prosecutor: And how many demos have you been to in Britain?
A couple of dozen in five years.
Prosecutor: on a range of issues?
Prosecutor: Not always organised by no borders?
Not always organised by no borders.
Prosecutor: So you’re a member of various groups?
No, its possible to go on a demonstration without being a member of a group.
Prosecutor: So the only demonstration you’ve been that required meetings before was this one?
Prosecutor: That’s what I was getting at. You’re sufficiently high in the hierarchy to be trusted to organise the keys and be trusted in the….
This is giving me too much honour.
Prosecutor: How many of those have you organised? More than one more than a dozen?
I don’t recall.
Prosecutor: You’re precisely the sort of person the state should should be collect photos of?
There was nothing to suggest that this witness had done anything worse than attending many demonstrations, being part of organizing some of them, and collected keys for a meeting.
what would be the type of person the state should be collecting photos of? What are you implying?
Prosecutor: I’m not someone you ask questions of and I’ve got no more questions for you.
Judge: That’s all the evidence to be called is it? So just speeches and arguments tomorrow
Prosecutor: The officers are acting in a no more invasive way than the cameras we see on the streets. We have to see those in London.
The situation may be different if the meeting was in a field in the middle of Yorkshire, where people expect a different level of privacy.
No evidence has been called to show that the events were disproportionate for the crown to rebut. No evidence to show anything that isn’t in accordance with Wood.
Judge: So what the crown says is – you accept that this is the state taking photos – that Article 8 is engaged – but you say because there’s not evidence of lack of proportionality, this is proportional
Prosecutor: Yes, and its clearly set out in art 8 that the state is allowed, for the protection of the public of society to act in that way. One then goes into the detail in Wood, but in this case no evidence has been put forward by the defence to suggest anything was breached.
Tom Wainwright: I start by ref to one of the last things said yesterday to the witness – you are precisely the sort of person the state should know about – and in my submission that is exactly the kind of statement that the European convention was drafted to avoid being said and accepted by a court. Let me break that down:
the sort of person — said because he went to meetings and helped organise some demonstrations. The crown’s case appears to be that that is sufficient for him to be the sort of person the state should know about. And its the same justification, or the highest justification given for others.
Attended a meeting to prepare a demonstration, and what the crown seem to be saying is that a demo is synonymous with violence. Clearly that isn’t the case.
Come on to the real question, the justification under articles 8(2), 10(2), 11(2), because my learned friend skipped a step. Look at the right protected, the nature of the infringement on one side, one then looks at the justification on the other side and then goes on to consider if it is proportionate if is the least possible interference.
My learned friend skips on to proportionality without addressing what is the legitimate aim being pursued here. Perhaps he has done that because there is no evidence as to the aim being pursued on this occasion There is nothing in the evidence that one can tie in to the justification set out in 8(2), 10(2), and 11(2), so one does not even come on to proportionality There is nothing to put in the balance on the other side
It’s not for the appellants to produce any evidence that officers were outside their duty. That submission fundamentally misunderstands the legal framework, Once infringement has been established under whatever article, it is for the state to justify that under the subsequent subsection. The defence do not have to call any evidence, not under law. There is not a reverse burden, courts have been very slow to read in reverse burdens.
Once the issue is raised it is for the prosecution … to prove that this was in accordance with a legitimate aim and in accordance with law and proportionate.
Judge: Anything else? One more thing to raise with Mr Turner. I want to come back to legitimate aim. What evidence do you point to of the legitimate aim?
Prosecutor: We heard from Mr Paul who said that he’d be instructed that if photos of any use had been obtained they would have rapidly if necessary been used. We know as a matter of public record that the meeting that afternoon had elements of violence.
Judge: What evidence is there before the court?
Prosecutor: From Mr. Paul. Who says he was instructed to forward images for the bush demo. … Because of actions of these appellants Impossible to call any evidence to say what would have happened because we don’t know who those individuals were.
Prosecutor: but if the appellants are expecting to be afforded all the evidence and be made privy to it before deciding to obstruct the system simply couldn’t work.
Judge: Anything else?
Tom Wainwright: It is not a matter of public record not a matter the court can take into account that there were elements of violence. He is giving evidence of what would happen, he is giving evidence. There was evidence the prosecution could have called. He could have called evidence as to what the policy was, which would have dealt with procedures etc. Its not sufficient to say because the photos were taken that wasn’t begun. There must have been a policy.
Judge and magistrates retire for 23 hours to consider their decision.
Judge: Let me deal with our conclusions and verdict in this matter: this is an appeal by all three appellants against convictions for obstructing a police constable and obstructing a person assisting a police constable, under section 89(2) police act 1996.
The prosecution must prove so we are sure, that the constable, or person assisting, was obstructed, and that he was acting the course of his duty. Two elements in each offence. This is the key issue. The appellants submit that the police were acting in breach of article 8 of the European convention on human rights.
Reference has been made to articles 7, 10, and 11, but the central tenet is breach of article 8. The second question is whether we are sure of each that he wilfully obstructed
Focussing on whether the police were acting lawfully, the crown say it was lawful, but the crown accepted that article 8 is engaged. We have evidence from Mr. Paul. We viewed the CCTV We now have exhibit one, a notice setting out reasons. We heard from the arresting officers statements read as agreed, and from Mr. Clay and from a defence witness Mr. ________. We did not hear from any other police officer.
Crown acknowledging engagement of article 8 means the court must consider first engagement and then 8(2). That requires consideration of whether the police had a legitimate aim, and acted in a way proportionate and accordance with law.
Extent of infringement evidence is limited. Filming 80-100 feet away was the object appears a limited infringement There was a further 25 stills taken which have not been produced. No evidence of what use of those stills or what otherwise made of the film.
Article 8(2) is important in the circumstances:
There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
having reviewed the evidence and considered Wood this court finds itself in considerable difficulty.
The crown sought to argue that the court should only focus on filming after the banner was put up and, therefore could be seen as evidence of a criminal offence, Mr Paul’s evidence is that he was trying to film the Pullens Centre. To suggest the filming was only for the crime must be wrong. No police officer has been called to explain.
The court could not conclude what the original intention was. The only evidence adduced to justify the filming is exhibit one, the flyer on overt photography. It says “prevention of crime – obstruction”. It cannot speak to the truth of its content. Mr. Paul said later in the day there was a demonstration for the Bush visit. Still photos were all taken prior to the banner being held up. We were provided with no evidence of what happened to 25 stills of, or if the CCTV was used other than in this prosecution.
We could only give very limited weight to this evidence. This court has concluded there is insufficient evidence of a legitimate aim. We cannot be satisfied that the exception in 8(2) is made out. We cannot be sure the police were acting lawfully and within their duty. We do not say the police did not have a legitimate aim, only that there is not enough evidence of it. We therefore find for the appellants and find them not guilty of the charge of obstruction.