police raid in may 2006
inspector andy robinson
constable gary smith then took the stand. he was responsible for delivering conditions to brian, and on 18th may (after brian refused to accept it), placed a summons under a coffin that made up part of brian's display.
the last prosecution witness was acting sergeant riley, but from some of his answers, one might have thought this unfortunate policeman was appearing for the defence! it started well enough, with a look at a video from the 16th may this year. riley was visiting brian's site at 7am in order to check if the conditions were being met. he showed on video the various people sleeping at the site, and some possible hiding places for those pesky terrorists' improvised explosive devices. he did his best to wake brian, but brian wouldn't stir. brian's fantastic supporter and "mother of all parliament-squarers", maria, tried to negotiate with the officer, suggesting he behave reasonably and make an appointment to come back at a more suitable time. he complained that a "serious offence was being committed here" but he eventually went away.
the prosecution asked riley how he had been informed about the conditions, and he seemed a little hazy, but thought he'd got them on paper from inspector robinson. he told how he had seen evidence of conditions 1 and 4 being broken, ie that brian's display was larger than the proscribed 3m x 3m x 1m, and that brian had various boxes, containers and so on, that could conceal other items. riley also alleged that brian was in breach of condition 5 in that it was not possible to tell "at a glance" that there were no suspicious items there. once he had collected his video evidence he returned to share it with superintendent terry.
under cross-examination riley admitted that he couldn't say the exact site size for certain, and then was questioned about what constituted 'containers'. when ian macdonald asked him whether brian's bed could be classed as a container he got himself in the first of several muddles and first said that beds might indeed be in breach of the conditions, but as the barrister asked him about the beds of supporters of brian (who were there to help ensure that brian could comply with the condition requiring him to keep his site secure), he then said that the beds were not part of the demonstration. he was reminded that he'd said earlier they were, and eventually agreed that brian sleeping in his bed could effectively be a breach of conditions 4 and 5.
this line of questioning continued after lunch, when riley agreed that anyone staying overnight and bringing a bag could be in breach of conditions. after going along with the suggestion that even a water bottle might be in breach, he went on to admit that under the conditions imposed it was practically impossible for anyone on the site bringing personal items with them, to avoid putting brian haw into serious criminal liability.
since one of the main reasons cited for all these conditions is "security", he was then asked if he had reported the breaches he saw as a serious security risk. he said he'd reported the breach of conditions, but that neither he nor any other officer had suggested the site be searched for a possible bomb.
after all this, the prosecution barrister tried to save the day by guiding riley through some friendly questions, but he didn't quite get hold of this thread. so, over questions about the possible threat posed by occupied and unoccupied beds he started giving answers the prosecution hadn't really wanted to hear. moving swiftly on, the prosecution guided him through the enormity of operation that a proper search would entail, including a serial (1 sergeant and 8 constables), roadblocks, cordoned areas, massive disruption, and a time span of 4-6 hours.
the judge then asked how many times such a 'proper search' had been undertaken in the five and a half years brian had been there? the answer - never.
well, that was the case for the prosecution, but before calling any defence witnesses, ian macdonald made a submission to the magistrate that there was actually no case to answer. this was in reference to two areas. first of all, in terms of human rights, he argued that the crown had not shown that the clear interference in brian haw's human rights 10 and 11 (freedom of expression and freedom of speech) was justifiable under the section 2 clauses in the act (which set out circumstances in which curtailment of freedom is acceptable). secondly, that the conditions imposed by superintendent terry were unlawful, as there was no legal basis for the commissioner of police to delegate responsibility for framing those conditions.
with reference to the first point, the barrister first showed that brian's demonstration was clearly the sort of thing protected under article 10 of the human rights act, referring to case law about two hunt saboteurs. they had been bound over to maintain 'good behaviour', and their case was won in court on the basis that 'good behaviour' was not sufficiently clear and precise. macdonald likened this to brian's case where the conditions imposed effectively allowed the police to legislate, and yet the legislation they had produced was not clear and precise.
the barrister went through other case law, both european and domestic, reinforcing the point that any legal sanctions must be accessible and clear, in order to allow a citizen to be able to understand, modify and control his behaviour in such a way as to avoid falling foul of criminal law. he also touched on the question of proportionality and showed that any any interference with human rights must be because of an important need, must be wholly reasonable, and must never be more than necessary.
in brian haw's case, the defence agreed that there is no dispute that domestic law gives the police power to control demos through the notification/authorisation system, and to impose conditions. but the argument is that these particular conditions do not meet the criterion required as 'proscribed by law' in that they lack the precision necessary to enable brian to foresee under what circumstances he may face court.
condition 1 (which refers to the size of his 'site') makes no sense against condition 6 (which allows up to 20 demonstrators to join his protest). also, the condition requiring him to be in total control of his site would require others to be there to maintain the 24 hour 100% security , and yet they wouldn't be able to fit into the area proscribed by condition 1.
in conditions 4 and 5, the position is verging on farcical. the term 'container' may apparently mean the beds covered in sheeting, the bags of anyone staying on site, the concrete-filled plastic buckets used as weights, the sand bags, a toolbox, and possibly even a kettle. the barrister reminded the court that superintendent terry had agreed that to make brian's bed "criminal-proof" you'd have to use all sorts of lockable belts and tape.
ian macdonald said that the 'final nail in the crown's coffin' was the suggestion by 'acting detective sergeant riley's' admission that even when brian haw is in his bed covered by a tarpaulin, this would still be regarded as an insufficiently secure container.
the barrister reminded the court that although all these conditions were supposedly based on a need for security, no security searches had ever been undertaken. this undermined the whole thesis of the crown's case.
at this point, even the prosecution barrister had a wry smile on his face in recognition of macdonald's fine argument, and inspector robinson stared glumly ahead, with what looked like hate-filled eyes trained on macdonald's back.
in terms of proportionality, the defence barrister reminded the court that although cars, bicycles, and people were regularly stopped, searched, removed or questioned in the vicinity, in more than 5 years, brian had never been subject to a proper security search. he argued that the risks had been continually overstated, and likened the police position to a situation where a man caught without a raincoat might take refuge in a doorway during a storm, while the police view him as someone lurking in a suspicious manner.
even the judge chipped in and reminded the court that brian had attempted to report a drum left at the site, but that the police claim to have no knowledge of it.
in summing up this part of the argument, ian macdonald reminded the court that the police had said themselves that they couldn't guarantee absolute safety in the area, but that the draconian conditions placed on brian relied on an exaggerated security risk, an exaggeration of brian's inability to secure his own site, and a requirement for brian to maintain 100% security on his site.
the afternoon was drawing on, but macdonald began his submission about delegation. he started by referring to the relevant clauses of the socpa act, which refer to the commissioner throughout, except in section 135 where a senior officer present can impose additional conditions and vary the conditions, but all these powers are tempered by a list of possible reasons such as to prevent public disorder, avoid disruption to the life of the community, protect persons and so on.
the defence barrister began to refer to previous public order acts, namely 1936 and 1986, to show a historical continuity in the role of the commissioner and any possible delegation of powers. no doubt tomorrow he will conclude this thread and show that terry simply didn't have the authority to write these conditions. there will also be the question of the undated delegation letter.
so, the magistrate, mr. purdy, will doubtless make some sort of history soon. he will either throw the case out of court, and open brian up to the possibility of suing the police for their illegal seizure of most of his display in may, as well as the pheonix-like rebuilding of his wonderful protest, or he will somehow square a circle, and rule against the submission, in which case the defence may call witnesses to fight the charges on other points, and of course appeals in the event of a guilty verdict would be highly likely.
all will probably be revealed tomorrow. supporters are welcome at marylebone court and the hearing resumes at 10.30am