By Jamie Bryson
@JamieBrysonCPNI
In the past three weeks, the PSNI- via their paramilitary crime task force (PCTF) has carried out an incredible twenty arrests under the Terrorism Act 2000 within loyalist areas. Nineteen of these arrests have been in East Belfast, with one in the North Antrim area. All hose arrested have been released unconditionally in relation to Terrorism.
This article makes no comment on any specific individual cases, in the first instance because the purpose is to rather highlight the general abuse of the Terrorism Act, but furthermore due to the fact that three individuals face (albeit absolutely absurd) charges in relation to minor non-violent public order matters and as such it is important to be mindful not to prejudice any live cases.
The nineteen arrests in East Belfast flow from what is described by the PSNI as a “significant gathering in the Pitt Park area”, which allegedly took place on 2 February 2021. Readers will not be slow to observe that this incident has attracted nineteen arrests within a matter of weeks, whereby it took six-months for the PSNI to ‘negotiate’ voluntary interviews in relation to the IRA show of strength at the funeral of Bobby Storey.
If we for the purposes of this analysis take the PSNI’s case at its height, then the genesis of the nineteen arrests is the “significant gathering in the Pitt Park area”. This gathering is being investigated in relation to ancient common law public order matters (which we will come to).
It is trite to point out that the public order offences being investigated do not constitute acts of Terrorism, therefore for the purposes of Schedule 5 (1) (2) of the Terrorism Act 2000, the key access condition (namely a Terrorist investigation) for the procurement of search warrants is not satisfied.
The PSNI are however seeking to get around this legal ‘inconvenience’ by simply alleging that part of their investigation includes ‘membership of a proscribed organisation’, and thus this is what grounds their application under Schedule 5 and powers of arrest under Section 41.
This raises serious issues. Firstly, if the PSNI suspected nineteen persons of membership of a proscribed organisation- and their intelligence was so reliable as to warrant the initiation of a terrorist investigation- then is it really credible to suggest that all of this only arose post 2 February 2021?
It is reasonable and logical to conclude that in fact the PSNI were not conducting any such investigations under the Terrorism Act prior to the 2 February ‘gathering’, and have only contrived such matters in order to provide a power by which to conduct draconian search and arrests operations in a wholly disproportionate, and arguably unlawful, manner. There will be many who will in addition conclude that the PSNI’s actions are really driven by a desire to placate republican anger and political pressure.
That brings us to the concern that PSNI in fact (and this has been borne out in numerous police interviews in my understanding) have no evidence of terrorism offences at all, and are merely going on the basis of media reports or anonymous hearsay.
Indeed, the PSNI have bound themselves- in open court- to saying that the basis of their assertion that the relevant gathering was ‘the UVF’ is that “members of the community told us (PSNI) that they heard it was the UVF”. This is extraordinary- the PSNI, by their own admission, are not even relying upon credible first-hand intelligence, but anonymous third-party hearsay.
It is interesting to note that at the commencement of their investigation the PSNI sought CCTV on foot of warrants obtained under PACE for the offence of ‘unlawful assembly’. (See Irish News article by Allison Morris)
It was only after the lawfulness of recourse to such a draconian offence- in light of the requirements in Article 7 and Article 11 of the European Convention- was highlighted, that the PSNI abandoned using PACE, and instead moved into the territory of deploying the Terrorism Act.
Is it the case that the PSNI received legal advice as to the reality that in fact the offence of unlawful assembly is not made out, even on a prima facie basis, and therefore the more prudent course of action would be to contrive a ‘membership’ investigation in order to shoehorn it all in under a Schedule 5 warrant and Section 41 arrest?
As per Re McVeigh’s application {2017} NIQB 61 a person subject to a search has a common law right to be provided with the information grounding the warrant, and the Magistrate’s notes and any material considered (subject to any PII considerations). In the present cases one imagines that a consideration of such material will inevitably lead to a Judicial Review of some, or all, of the warrants issued. This would be welcome and would place High Court scrutiny on the manner by which the PSNI are seemingly playing fast and lose with the law.
Given the Terrorism Act arrests and searches are merely an abuse of that legislation, it is necessary to now consider the non violent public order offences they actually are purporting to investigate; unlawful assembly and affray via a show of force.
Unlawful Assembly was expressly repealed in 1986 by the Public Order Act 1986. The Northern Ireland equivalent, which is analogous to the 1986 Act, is the Public Order (NI) Order 1987. The intent and purpose was plainly the same as the GB legislation, however for some inexplicable reason the legislation did not expressly repeal unlawful assembly and affray; whether they were subject to implied repeal may be a matter to be argued in the courts in the coming months. In this respect, we may arrive at the incredible situation whereby in fact these offences aren’t even offences at all anymore.
In any event, the offence of unlawful assembly was de-facto obsolete. It was originally designed for ‘serious fighting’ by three or more persons, and there is no caselaw within the annals of UK legal history which has any parallel with the manner in which the PSNI seek to deploy the common law offence. It is even more extraordinary given the PSNI are bound to act in accordance with Convention rights as per Section 6 (1) of the Human Rights Act 1998. It is inconceivable that it could be argued with any degree of credibility that the ancient offence of unlawful assembly would satisfy the requirements of Article 7, or amount to a lawful interference with Article 11.
The deployment of this ‘offence’ is an extreme example of fitting a square peg in a round hole. It will be interesting, in the future, to see exactly who give a legal opinion suggesting any person could be charged for this offence. I would imagine that at some point someone is going to have to stand over that astonishing assertion.
The PSNI have further resorted to the offence of ‘affray’ by a ‘show of force’. This is an even lower form of affray than unlawful violence. It was recently considered by Colton J in a no bill application in the Meli case (The Queen v Shannon McILwaine [2019] NICC 7)
At p.45 Mr Justice Colton stated “In terms of what is meant by an unlawful display of force there is a dearth of authority on this particular point. The cases which I have considered in this jurisdiction deal with unlawful fighting…” (emphasis added)
At p.54: “The witnesses clearly describe the group following the smaller group. They are described as running and in effect chasing the group. There are references to bottles being thrown. When the chasing group engaged with the retreating group serious violence ensues.”
Mr Justice Colton concluded at p.56-57 by finding that there was a prima facie case, however emphasised it was not “by any means straightforward”. The balance was tipped by virtue of the conduct outlined at p.54; namely a group chasing a smaller group, bottles being thrown and the reality that serious violence occurs resulting in the tragic death of a young man.
It is plain therefore that even in the circumstances set out within p.54, the matter was far from straightforward, leading Mr Justice Colton to refer to the need for the jury to receive a “very careful direction”.
This illuminates the reality of what the most basic requirements would be to even get over the prima facie test in terms of affray by a show of force. There must be some form of disorderly conduct; merely wandering around could not possibly suffice.
It is worth noting that the relevant defendants charged with affray by a show of force in the Meli case received non-custodial sentences, in some instances even receiving conditional discharges. That was in circumstances whereby an individual tragically died as a result.
Clearly given the aforementioned legal points, serious questions arise as to how anyone can find themselves remanded in custody based on these ‘offences’, considering the State’s obligations under the Human Rights Act 1998.
Whilst in custody, all persons (from all communities) are subjected to a 14-day period of ‘isolation’ flowing from Covid. These inhumane conditions lead to persons being held in dirty cells (which prisoners are moved between) on effective 24 hour lockdown and denied the opportunity to wash on a daily basis, or to communicate with friends, family or legal representatives. Rather the prisoners are only permitted to wash once every other day, and to have one brief telephone call every other day.
Leaving aside the persons/communities being targeted, the reality is that the PSNI are abusing the law with impunity and a blatant disregard for basic Human Rights. The more this goes without public scrutiny or legal challenge, the more empowered the PSNI appears to become in expanding what is, on a prima facie basis, their Human Rights abuses.
There are other serious issues, such as all-male PSNI search teams entering a female child’s bedroom to wake her from her sleep without first seeking permission of the child’s mother (who was alone in the household at the time). The reality that an all-male search team would be aggressively entering a female child’s bedroom, and indeed riffling through a female adult’s private underwear (without any female officer even on the premises) is as extraordinary as it is appalling.
We also have issues in recent weeks of the PSNI seeking to seize persons children’s and partner’s phones, Ipads or computers- despite it being obvious they have no connection to the subject of the search. Given the importance of such devices for communication during Covid, and indeed in relation to children’s school work, is it really too much to ask that the PSNI would act reasonably and proportionately?
If these actions were being targeted against the republican community, there would be uproar and politically the PSNI would be held to account. Even in relation to dissident republicans, we regularly see Sinn Fein holding the PSNI to account if they believe policing actions are disproportionate or unlawful.
In certain loyalist areas persons are left with no voice and no political support; it seems the PSNI are free to operate with impunity, and that cannot be. Every person, regardless of who you are or any alleged crime, deserves equality under the law.
Sadly, for many within the loyalist community, inequality under the law has become the default position.
*The PCTF, since its inception, has not carried out a single search, arrest or investigation in relation to the Provisional IRA.