The incident, which involved an alleged attempt to conceal a digital camera memory card, took place when Mr Viesnik was being searched under section 44 of the Terrorism Act 2000 http://www.opsi.gov.uk/acts/acts2000/ukpga_20000011_en_5 , a power often inappropriately used against protesters. The court in the original trial heard how the defendant had been observed making notes and taking photographs at the scene of Ms Irene Willis's silent lone vigil and fast for the victims of the arms trade outside the gates of Downing Street in Whitehall last September. This coincided with the Defence Systems & Equipment International (DSEi) arms fair, sponsored by the UK Ministry of Defence, which has been held every two years at the ExCel centre in London’s Docklands http://www.dsei.co.uk/ . The judge in that hearing found that the uniformed officer carrying out the search, P.C. Paul Hussey (D131) of the Diplomatic Protection Group (DPG) was entitled to do so under the Act as he did not require ‘reasonable suspicion’. The judge was further satisfied both that the (sole) motive for the search was genuine, i.e. to look for ‘articles of a kind which could be used in connection with terrorism’, and that the defendant obstructed the search. Downing Street CCTV had communicated that the defendant had attempted to conceal the camera memory card in his mouth, and the officer claimed that Mr Viesnik had subsequently declined to reveal its location (in a trouser pocket).
The principal grounds for appeal against the conviction were that the officer had not been acting in the execution of his duty and was abusing the s.44 power. It was contended that his purpose was not genuinely to search for articles useful to a terrorist but to harass the defendant and keep him apart from the female demonstrator, Ms Willis. At that time, she was sat in front of the gates to Downing Street on Whitehall, blocking vehicle access. It was further argued that the officer had failed to comply with the requirements of Code A of the Police and Criminal Evidence Act 1984 (PACE) http://police.homeoffice.gov.uk/operational-policing/powers-pace-codes/pace-code-intro/ , which should provide protection from abuse of s.44, according to Lord Bingham’s judgment in the case of Gillan http://www.lawreports.co.uk/WLRD/2006/HLPC/mar0.6.htm , which is the key authority on this matter.
Giving evidence before Mr Justice A Brigden and Justices Mr Parkins and Mr E Lord at Southwark Crown Court, serious inconsistencies were exposed in the versions of events provided by the two Crown witnesses, P.C. Hussey and his colleague P.C. David Smith (D395) when compared to the CCTV evidence, especially in the case of the former witness. P.C. Smith even admitted that he conferred with P.C. Hussey as the pair wrote up their notes several hours later.
The Crown then closed its case and counsel for the appellant, Ms Felicity Williams presented her core legal arguments. After a brief response from the Crown, the court retired for the day.
On day 2, the Crown responded in more detail to the legal arguments raised, referring in particular to Gillan. It was suggested that the search was justified in spite of the inconsistencies in the evidence, particularly since no grounds for suspicion were required and the incident came just two days after the 6th anniversary of the September 11th attacks in the U.S., hence at a time of heightened sensitivity.
The bench then retired to consider whether the Crown had a prima facie case. On returning, Mr Justice Brigden announced their finding that the Crown’s case failed the Galbraith test for consistency of evidence, since the testimony of the officers in respect of the pretext for the s.44 search was deemed to be unreliable, not least because there were major inconsistencies compared with the CCTV evidence. The bench was not satisfied that the search was carried out for a legitimate purpose, meaning that P.C. Hussey was not in their opinion entitled to apply s.44 in this instance, i.e. he was not acting in the proper execution of his duty. The appeal therefore succeeded and the conviction was quashed.
Mr Viesnik had this to say:
"Police harassment, intimidation and violence against activists, their supporters, civilian witnesses and journalists, both independent and mainstream, reporting on contentious political activities continues unabated, with abuse of anti-terrorism and public order powers commonplace. Clearly the need to defend our civil liberties is greater than ever, and it is up to people like me to do it through action at every level and not simply words.
“Today’s ruling was a victory for common sense and sends out a clear message: that the State’s relentless attempts to erode our human rights and liberties and to pervert the course of justice must and will be rigorously opposed and challenged. Otherwise we risk moving into police state territory."
Dr Shahrar Ali, Green candidate for the European Parliament, who was at the appeal, said:
"This has been a decisive victory for Mr Viesnik and I commend the judge for acting as he must."
He continued, "At Downing Street or Kingsnorth, peaceful demonstrators will be cheered to hear right reason prevail in the face of the state-sponsored assault on our liberties under ignorant ideological pretences. Daniel won this case for all our sakes."
Mr Viesnik would like to thank his barrister, Ms Felicity Williams of Chambers of Mr. S. Kadri Q.C. and his solicitor, Mr Jonathan Dennis of Bindmans. He would also like to thank all who turned up and gave much needed and appreciated support at the various hearings and who sent messages of support. The defence in both trials was funded entirely by Legal Aid.
Report on the original action: http://www.indymedia.org.uk/en/2007/09/381114.html
Report on Irene's trial, where the charge against her was dismissed: http://www.indymedia.org.uk/en/2007/12/387326.html
See also: http://www.indymedia.org.uk/en/2008/08/405274.html
e-mail: dv2012 [at] yahoo.co.uk