August 4 2008
Dear Assistant Chief Constable Thomas,
POLICE EXERCISE OF POWERS OF SEIZURE DURING OPERATION OASIS
I am writing to you on behalf of the legal support team at the Camp for Climate Action.
We are of the view that the very wide ranging seizure operation mounted by your police since the camp began steps far beyond the clearly delimited powers of seizure set out in the Police and Criminal Evidence Act s. 1(6) or (in the case of seizures empowered by the search warrant last Thursday) the Criminal Damage Act 1971 s.6(2). The explicit purpose of these seizures would appear to be at very least to hamper and render ineffective the camp's intention to take non-violent civil disobedience. At the most it constitutes a concerted attempt to disrupt and sabotage the smooth running of the camp itself. Certainly both of these are likely to be the consequences of the seizure policy as currently implemented and there may also be adverse consequences in terms of health and safety.
Being neither prescribed by law nor necessary in a democratic society this policy of seizures amounts in our view to an unjustified interference in the rights of the camp participants under Articles 10, 11 and Protocol 1 of the European Convention on Human Rights. It also amounts to the common law tort of trespass to goods.
We seek your immediate reassurance that you will 1) return to the camp all items unlawfully seized 2) issue guidance to your officers reminding them clearly of the test in PACE s. 1(6) and ensuring that henceforth only articles satisfying this test will be seized.
We have still not been provided with a full list of the hundreds or thousands of articles that have been taken since the camp began. We have been supplied only with a very incomplete list relating to the warrant executed during the police raid on 31.7.08. This list has 56 entries, although many of these entries concern multiple items (eg. “Quantity of hand tools”). Evidence from a number of camp participants conveys the impression that the sheer volume of articles confiscated goes far beyond anything that activists in this country have experienced in connection with protest activities over the last decade or two.
This is a very small sample of a few of the items which have been seized broken down into 3 groups:
Rolls of duct tape
Bundles of wood
Packets of chalk and crayons
Bike locks (attached to bikes)
Puncture repair kits and 2 spare inner tubes (in bike panier)
Rucksack containing walkie talkies
2x3 m waste pipe
Home made soap
Guys and pole to mount wind turbine
Vehicle equipped with batteries, wind and solar generating capacity
Geodesic dome structure
Boxes of coveralls and masks
Oars, inflatable rafts etc - examples
3D model of Kingsnorth Power Station
Maps of power station
26 Metre long banner showing the history of homo sapiens mapped against carbon emissions
PACE 1984 S. 1(6)
The power of seizure conferred by the Police and Criminal Evidence Act 1984 s.1 reads:
(6) If in the course of such a search a constable discovers an article which he has reasonable grounds for suspecting to be a stolen or prohibited article [...] he may seize it.
(7) An article is prohibited for the purposes of this Part of this Act if it is—
(a) an offensive weapon; or
(b) an article—
(i) made or adapted for use in the course of or in connection with an offence to which this sub-paragraph applies; or
(ii) intended by the person having it with him for such use by him or by some other person.
(8) The offences to which subsection (7)(b)(i) above applies are— [...]
(e) offences under section 1 of the Criminal Damage Act 1971 (destroying or damaging property)].
CDA 1971 S. 6(1)
The more restrictive provision under the Criminal Damage Act 1971 provides, in relation to the warrant issued last Thursday that any constable may search for and seize a thing about which:
(1) there is reasonable cause to believe has been used or is intended for use without lawful excuse—
(a) to destroy or damage property belonging to another; or
(b) to destroy or damage any property in a way likely to endanger the life of another
ECHR / Human Rights Act 1998
These powers must be used in a manner compatible with the ECHR, specifically with rights to freedom of expression and freedom of assembly enshrined in Articles 10 and 11. Any interference with these rights in the interests of preventing crime must be necessary in a democratic society, ie. proportionate and must be prescribed by law rather than based on arbitrary executive whim. Any use of these powers must also be compatible in its exercise with the rights prescribed by Article 1 of Protocol 1 to the Convention which provides:
“Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.”
In numerous cases the European Court of Human Rights has reiterated that the Convention is intended to guarantee rights that are not theoretical or illusory, but practical and effective.
The provisions in PACE s.1 are very specific. They do not confer a general power to seize any article that might conceivably be used by any person in connection with any form of illegal action. They require that the item be intended for use in the course of or in connection with committing criminal damage (we here assume that the other offences listed (theft, burglary etc), are not relevant in this situation – if we are incorrect about this please tell us).
In interpreting the meaning of 'in connection with' in a way compatible with camp participants' human rights, regard needs to be had to the fact that seizure of personal property is obviously a draconian power which directly interferes with a person's right to a peaceful enjoyment of their possessions as well as with the ability of persons at the camp to freely assemble satisfactorily and safely and to effectively express themselves politically.
We are concerned that a large number of articles have been seized which either:
1.Have very obvious and immediate practical uses in setting up and running a camp of many hundred people, but only at best conjectural or hypothetical uses for the purposes of causing criminal damage and at worst no such conceivable use; (group 1) or;
2.Have very obvious practical uses in terms of assisting and facilitating public protest and or civil disobedience in broad terms (group 2), but no immediately obvious use in the course of or in connection with committing criminal damage.
We obviously accept that items such as boltcroppers or superglue are items which have been seized legitimately by police.
In relation to the first group for instance – how will large numbers of workshops and public meetings function without marker pens to write on whiteboards or paper? How will site security at the gates communicate with each other if radios have been confiscated? How will we construct compost toilets without hammers, nails and saws? How will meetings be hosted without marquees? How will plumbing function without pipes? How will people use their bicycles if they have no means of securing them? How will people make banners without paint?
In some circumstances, police have confiscated items essential for sanitary or health and safety purposes, for instance piping for plumbing, or boards necessary for disabled access or materials required to construct toilets. Often, your officers have then relented in the face of pleading and given back articles where their crucial safety importance is explained to them. For instance some of the hard hats (essential for those erecting marquees) were returned on this basis. However although such commonsense and flexibility is welcome, it does not render any less unlawful the seizures in the first place. Moreover not all such negotiations have been successful. For instance, an essential power generating vehicle equipped with solar and wind generating capacity has been refused entry to the site. The driver was told that the batteries 'could be used as a weapon'. When he asked how, he was told that the electricity could be used to electrocute people.
The consequences of these seizures and their sheer volume is likely to simply render the camp experience less comfortable, less enjoyable, less impressive and enjoyable for everyone. The cumulative effect of this general undermining of the camp's ability to operate is an interference with participants' human rights. In addition, health and safety is being jeopardized. For instance a shortage of power generating facilities will make it difficult to light the site at night which will increase the risk of people stumbling and falling. In addition it will make it difficult for us to supply power to charge an electric wheelchair which at least one camp participant needs.
In relation to the second group, evidence from those from whom articles were taken makes clear the poor understanding of the legal position held by the officers carrying out the searches. For instance the person from whom soap was taken had explained to him that soap was used by protestors to make themselves slippery to prevent police taking hold of them effectively. The person with a clown costume was informed that the costume could be used to commit a public nuisance.
From a commonsense point of view it is very hard to see how an inflatable raft; a wetsuit; a hard hat; or a D-Lock could be used to cause criminal damage. Of course these articles have very obvious purposes as tools for protest and/or civil disobedience more widely – the raft and wetsuit are likely to be used to attempt to gain access to the site by water; the shields and hard hats are likely to be used to protect people from baton blows by police; and a D-lock may well be used by protestors to chain themselves to immovable objects.
While some (though not all of these actions) may amount to criminal offences, many will not. The publically declared plan, for instance, to attempt to gain access to Kingsnorth Power Station by water would likely have been a visually interesting and newsworthy event which would have generated publicity and helped to publicly place in question the switch to coal powered energy generation. The story would have generated public interest from the point at which the rafts setting off, their journey to the power station, their attempt to land there and individuals' subsequent attempt to gain access to the site. The entire journey would amount to an attempt to carry out civil disobedience, described by Lord Hoffman as “an honourable tradition which goes back to Antigone.” (Sepet v Secretary of State for the Home Department  UKHL 15,  1 WLR 856 para 32). There may be particular offences committed in the course of such a journey against which it would be quite legitimate for the police to take action.
However, the police policy of simply seizing preemptively anything likely to be used to as waterborne craft seems designed to simply wipe out this potentially effective form of freedom of expression at source. While it may be more convenient for police to simply render impossible any form of protest which they do not like, rather than go through the time consuming process of prosecuting individuals for individual offences, this is a form of repressive political policing which exceeds the statutory powers relied on and which interferes with the camp participant's human rights.
Camp participants are responsible citizens concerned about the most important issue of our time. Some of these citizens may well be prepared to break the law in various ways to give voice to this concern. A small minority may be prepared to cause criminal damage, whether painting slogans on the wall or cutting fences. The overall approach by the police appears to be to treat the possibility that some criminal damage may be committed by some camp participants as a ground for withdrawing vital infrastructure from the camp and impounding any objects likely to be useful in any way to enable individuals to protest effectively. For the reasons set out above this approach is unlawful and must urgently be amended.
We seek your assurance:
1.That you will act immediately to instruct all officers conducting search operations to ensure that they bring any actions of seizure within the remit of their statutory powers; and
2.That you will immediately return all items seized in excess of these powers.
During the next 24 hours we will be seeking advice in relation to potential legal remedies for the actions documented here, however we very much hope that you will act swiftly and obviate the necessity of our seeking legal redress for the breaches documented here.
Camp for Climate Action Legal Support Team