Behind bars | Let them have biscuits

Preparation for the Olympics hotted up with the handing down of judgment in R (Hicks and Ors) [2012] EWHC 1947 (Admin) which concerned claims of unlawful arrests and searches in the run up to the Royal Wedding in April last year. As the paint dried on the Zhil lanes, as a plague of bunting burst out, and as the athletic Brits stocked up on beer and buns for heavy duty telly training so the way was cleared for pre-emptive arrests and detention for anti-Games protesters.

Hicks was a judicial review brought by four separate groups of claimants, all of whom had been somewhat interfered with either before or on the day of the Royal Wedding. The Hicks group were 15 people who had been arrested for breach of the peace separately in central London on 29 April '“ the over arching issues in that claim was whether the police operated an unlawful policy of equating intention to protest with intention to cause unlawful disruption '“ assuming that they were only there to cause trouble '“ and whether they operated an impermissibly low tolerance for protests on the day.

None of the Hicks group had actually broken any peace. Some of them were sitting in Starbucks having an overpriced latte '“ they were dressed up as zombies, but that is far less displeasing to the eye than some of the outfits seen in public. Mr Hicks, a long standing republican, was on his own walking down Charing Cross Road at 9. He too was perfectly peaceable but was wearing a bulky jacket with something bulgy sticking out of it. He was searched under section 1 of PACE on suspicion of possession of items for use on criminal damage. That hope died when the bulgy thing turned out to be a large packet of biscuits. But he was nonetheless arrested to prevent a breach of the peace, and kept in the clink until the happy couple had had their ritual kiss on the balcony. The police concluded he was likely to be involved in any disorder going as that was what he was like '“ he had no convictions for over 20 years but was well enough known to the police for them to call him by his first name - and that he was on his way to Trafalgar Square where other protesters might gather. The idea seemed to be that if he met up with them, and if they were equipped to cause criminal damage or harm, and if he joined in with that, then harm would result. Best to be on the safe side really.

Zombie Wedding

The Starbucks group had been on their way to a picnic advertised as 'Right Royal Orgy or Zombie Wedding'. They couldn't find it, and had coffee instead. But the police had' intelligence' - they had read a leaflet in which some foolish Zombie had suggested they might throw maggots at the royal procession. Any such disruption was likely to cause a breach of the peace '“ and they were arrested to prevent it.

Another more boisterous group had been arrested at Charing Cross station, with anti-royalist placards and an item referred to as a 'climbing helmet' '“ one of the justifications for their arrest was that they were going to Trafalgar Square which was filled with pro-royalists. Not only might they throw things and cause trouble themselves, but they might be attacked by enraged monarchists. The claimants generally tried to rely on their convention rights of freedom of expression and assembly, and a European authority Platform 'Artze fur das Leben v Austria (1988) 13 EHRR 204 which concerned anti-abortion demonstrations and an allegedly insufficient protection by the state against disruption by pro-abortion supporters. The court's judgment held that demonstrators should be able to protest without fear that they will be subject to physical violence by their opponents. It went on: 'In a democracy the right to counter-demonstrate cannot extend to inhibiting... the right to demonstrate'. The Administrative Court rejected that argument finding that a risk of violence against protestors is a legitimate ground to intervene against them.

The court also rejected the arguments there had been an unlawful blanket policy to prevent any and all demonstrations that day. The commissioner's written policies all referred, obediently, to convention rights and proportionality.

What does this mean for the Olympics? Could there be pre-emptive arrests to prevent any protest against, for example, the Saudi treatment of women? Yes. Detention till the Games is over? No, probably too long. Bail conditions not to go within any Olympic area or attend any demo at all? Yes. Special courts? Yes '“ any offence relating to, by with or from, or vaguely in the vicinity of any Olympian anything are heard in instant virtual courts, on the riot model. As they say, the Olympics are not about winning, but about taking apart. In this case, dismantling principles just as worth cherishing as commercial sporting events.

Animal safety notice: no maggots were harmed in the making of this article.