The five - Brian Barlow, Steve Barnes, Genny Bove, Rob Clohesey and David King - were all charged with taking part in an 'unauthorised demonstration' within the 'designated area' around Parliament on 29/30 October 2006. The cases had been joined together following a pre-trial hearing in May, where the five had agreed that they would not require any of the arresting/reporting police officers to be present at the trial.

Maybe the Crown Prosecution Service (CPS) had assumed that the case would therefore be a push-over and hadn't bothered to prepare, or maybe they really are cracking under the strain of all those new laws and endless prosecutions. In any event, the prosecutor was ill-prepared for the case which she claimed to have only seen for the first time five minutes before the trial, and struggled to present a coherent prosecution from the six separate files piled up in front of her. She counted the defendants and then the files and then appealed to the magistrate that there were six files and only five defendants, having failed to notice that Steve was facing two charges.

To begin with, the defendants were all ushered - protesting - into the defendants' box (behind a glass screen) to confirm names and addresses. Some of the five declined to give dates of birth, which went unremarked, thanks to Milan Rai's and Maya Evans' earlier stand on this, I guess. Standing in a glass box at the back of the court is not the best way to feel part of (or indeed hear) the proceedings against you, so the five vociferously expressed their wish to be seated in the main courtroom, which was agreed and turned out to be much more satisfactory. All the defendants represented themselves.

Before the case began, Genny asked to make a submission that to proceed with the case would be unlawful and an abuse of process, drawing on rulings from the European Court of Human Rights which talk about the need for any restrictions on the right to freedom of expression to be tightly drawn, with clear processes, foreseeable consequences and so on, and pointed to the duty of the magistrates court to stop the case going ahead given SOCPA's complete lack of process for its 'unwritten law' (the full submission is reproduced below for reference).

Rather surprisingly to the defendants, who were expecting to be silenced at the earliest opportunity, Genny was given time not only to make the submission in full, but also to give some examples of the problems that have arisen in the past due to SOCPA's shortcomings in this area. The prosecutor asked for time to go and dig out the caselaw to respond to this submission and asked if there was anything else the defendants wanted to raise so she could deal with that at the same time. Genny stood up again and outlined an argument, based on information contained in the CPS's website, that the 'public interest' test for bringing a prosecution could not possibly have been met, and that such a prosecution would do nothing to reduce crime, would not increase public confidence in the criminal justice system, nor be value for money. This also gave an opportunity for us to talk a little about the events we'd taken part in, our motivation and our dismay that we were being treated as criminals for remembering the dead. After that there was an adjournment for the prosecutor to scurry around and for the defendants to take a breather, before it was back in for round 2.

The prosecutor produced the judgement from the Court of Appeal in December 2006 between appellants Blum, Shaer, Evans, Rai and respondents DPP and CPS and intervener (whatever that is) the Secretary of State for the Home Department. This 12-page judgement then had to be copied five times on a photocopier that must have been miles from the courtroom, and another adjournment was given to allow the defendants time to read and respond to it. It was impossible to absorb all the legal jargon and the essence of this case in 15 minutes. The defendants argued that the points made in their submission were not covered by this judgement, but the CPS and judge Purdy decided they were - "SOCPA has been very well litigated" - and that the case against the five could go ahead. The defendants made clear their intention to take the case to appeal if necessary on these grounds. On the question of whether the case was in the public interest to prosecute, the prosecutor said that these issues had been considered "of course" (even though she'd not seen the case until 5 minutes before the trial) and that was that.

After establishing that there were the right number of defendants, the prosecutor launched into her prosecution case, starting with David King, not a good choice for her. She'd brought a police officer along to give evidence in person in David's case for some reason, but the date on David's summons was wrong, which meant his case was dismissed forthwith and she had a witness with nothing to do. As luck would have it, this police officer had also reported Genny, so after a bit of discussion he was called to the witness box, supplied with a copy of his statement "to refresh his memory" and responded to questions from the prosecution, the defendants, the prosecution again and the defendants again, which he answered as best he could, reading from his statement.

The prosecutor asked a lot of questions about the leaflets which the police had handed out to demonstrators during the weekend, managed to establish that they'd dished out hundreds but failed to establish that any of the leaflets had been given in person to any of the defendants, which proved to be important later on. Questioned by the defendants, the police witness was a bit vague about numbers taking part, and what exactly had happened during the Naming the Dead ceremony, but stated that it was a very peaceful event, that the bell which we'd been ringing was very small, and that it must have been a demonstration because some of the defendants had placards.

That took us up to about 10 past 1, so we adjourned for lunch, after which the prosecutor launched back into the rest of her case against Genny. The warning leaflet which had been bandied around before lunch had mysteriously disappeared, Genny said she hadn't received one with the prosecution evidence and when one was eventually produced from someone else's file, judge Purdy decided to take issue with its contents, the map, the designated area - everything.

Then it transpired that there was a further witness - a "high-ranking police officer" - rushing to the prosecutor's rescue on the issue of whether the demonstration had or had not been authorised, as judge Purdy was insisting that it was not enough to just say that it wasn't. The prosecutor had tried over lunch to get a fax with this information, which she hoped would be allowed as admissable evidence. Purdy said he didn't know who the fax was going to be from or whether it would be admissable. Then there was another adjournment I think - we were losing track by this time - and the high ranking officer was on his way; the defendants made some objections to this new bit of prosecution evidence; the prosecutor suggested that she could carry on with the prosecution case and hope that her new witness would have arrived by the time she'd finished; more objections from the defendants; judge Purdy said he wasn't prepared to allow the prosecutor to spin out the case just to give time for this new witness to arrive and eventually, after more deliberation, ruled that his evidence would not be allowed. So the high ranking police officer presumably had to turn round and go home again.

So the prosecutor continued with the other cases. There was some more argument - it seemed to go on forever - about how the prosecution would show that the defendants had taken part in an unauthorised demonstration, with the prosecutor repeatedly stating that the onus was on the defendants to prove that they had authorisation, the defendants and judge Purdy arguing that it was up to the prosecution to prove that they didn't - not that any of us were necessarily going to argue this point in our defence, but the prosecutor seemed certain that we were. She was quite upset about it all, appealing to the magistrate several times that it was unfair, that the defendants had "ambushed" her with all these new arguments, and that they should have raised all these things in the pre-trial hearing. "They've brought up all these new legal points, they've argued that they didn't know the protest was unauthorised; they've said some of them might have been part of Brian Haw's demonstration; how do I know they aren't going to bring up other arguments during their defence?" This wasn't quite accurate - all the defendants had said was that because SOCPA has no proper processes, it's impossible to know who is and isn't authorised, and who might be deemed part of an authorised demonstration or not. Anyway, judge Purdy wasn't convinced that any such "ambush" had taken place and said so.

The prosecutor limped on with the other cases, apparently failing to convince the magistrate on any of them that there was a sound prosecution case. There were more arguments over the map and whether it clearly showed the designated area. The prosecutor requested an adjournment to get her case together. The defendants all objected as this would inevitably have meant another trip to court. Purdy refused the adjournment. Eventually, she abandoned the attempt and declared her prosecution case closed. This was a bit surprising as several of the prosecution witness statements were from the FIT team who appeared to have gone to great trouble to collect photographic and video evidence, but none of this was presented in court.

It would have been on to the defence case at that point, but the remaining court time for the day was dwindling and none of the defendants fancied coming back for more. The defendants, although not well-versed in court procedure, luckily had the Activists Legal Briefing in front of them (big thanks to Activists Legal Project), so politely asked if they could make a submission of no case to answer at this point. It was hardly necessary, but we outlined our grounds and then judge Purdy ruled.

Something along the lines of "The Crown must prove that the defendants took part in a demonstration, that the demonstration was not authorised and that it was in a designated area. The Crown failed to bring evidence on these three issues. Case dismissed. No case to answer." The defendants were awarded costs and that was that.

Some observations

This case appears to be most uncharacteristic in the amount of leeway given to defendants to outline their arguments against SOCPA and the prosecution at the outset of the case.

From about lunchtime, it appeared that judge Purdy was determined that the case against the defendants would not succeed. It could be speculated that he was swayed somewhat by the early submissions, the defendants' sincerity and so on. Perhaps a more likely explanation, however, is that he didn't relish the prospect of having to justify his decision to allow the case to go ahead had the defendants appealed on the grounds of their submission. I don't expect we'll ever know for sure.

So, maybe this is a one-off case or maybe the days of successful SOCPA prosecutions are numbered. In any event, my view is that it's important to continue to challenge SOCPA restrictions on our freedom of expression at every opportunity, although of course this uses up energy we might be usefully employing elsewhere. A tiny victory was won today, but while we're busy defending our right to free speech, the situation in Iraq continues to deteriorate and we still need to be saying, very loudly and clearly - "No More Fallujahs."

Big, big thanks to everyone who sat it out in the public gallery all day and those who held a demonstration outside the court to support us and to Mil for hanging around all morning in case we needed him as a witness. Special thanks must also go to Barbara Tucker, for her words of wisdom the day before the trial, and to everyone at the Parliament Square Peace Camp for continuing to resist SOCPA oppression, day in day out.

Submission to the court:

I submit that these cases should not have been brought and should not be tried, for the following reasons:

The provisions of sections 132-138 of the Serious Organised Crime and Police Act 2005 include widely drawn restrictions on the freedom of expression we enjoy under the European Convention on Human Rights; the provisions of the ECHR are now enshrined in UK law.

The European Court of Human Rights has made a number of rulings which clarify the conditions which must apply when such restrictions are made. For example:

Silver v UK - March 25 1983. 5 EHRR 347, talks about the circumstances in which unwritten law is prescribed -

"Such a law will be prescribed - where a wide discretionary power is given, and non-statutory guidance sets out the manner in which the discretion is to be exercised and provided that this is accessible to those concerned."

Sunday Times v UK - April 26 1979 (1979-80 2 EHRR 245 para 49) describes how restrictions must be tightly drawn, foreseeable and predictable.

The unwritten processes must be adequately accessible… and be formulated with sufficient precision to enable the citizen to regulate his conduct and to foresee the consequences.

Judge Zekia (in Judgement dated 29 march 1979):

"Any restriction affecting the exercise of the right of freedom of expression must be reasonably foreseeable and predictable. You cannot enjoy or exercise the right to freedom of expression if the enjoyment of such right is made conditional and subject to a law or a rule or principle abounding in uncertainties. This would be tantamount to an undue restriction, even to a denial of such freedom of expression."

Judge Evrigenis in same case:

"The restrictions on the right to freedom of expression which are provided for in paragraph 2 of Article 10 (of the ECHR) constitute exceptions to the exercise of that right. As such, they not only must be narrowly interpreted (Klass and others judgement 1978) but also presuppose a definition of domestic law which is sufficiently clear and unambiguous, thus permitting anyone exercising his freedom of expression to act with reasonable certainty as to the consequences in law of this conduct."

SOCPA gives a wide discretionary power to the police, with no guidance whatsoever, accessible or otherwise, to set out the manner in which this discretion is to be exercised.

Written and accessible guidance on the "unwritten law" of SOCPA, for example the authorisation process, with safeguards to ensure that these powers are not arbitrarily abused, does not and has never existed under SOCPA s 132-138. Charges brought under SOCPA are unlawful and an abuse of process.

There is caselaw to confirm court powers and duties in such cases:

R v Horseferry Road Magistrates Court ex parte Bennet, 1994 (AC1)

The House of Lords confirmed that justices have the power to stay criminal proceedings on the grounds of abuse of process.

Connelly v DPP, 1964 (AC 1254)

The House of Lords recognised that the court has a general and inherent power to protect its process from abuse and that this power must include a power to safeguard an accused person from oppression and prejudice.

R v Beckford, 1996 (2 Cr App R 167)

"… two main strands can be detected in the authorities:
(a) cases where the court concludes that the defendant cannot receive a fair trial and
(b) cases where the court concludes that it would be unfair for the defendant to be tried."

Summary

Where processes are unknown, unforeseeable and not easily accessible, it is an abuse of process to bring any criminal proceedings.

Processes must be in place before any interference of our right to freedom of speech can lawfully occur.

I therefore submit that to proceed with a criminal trial on charges of taking part in an unauthorised demonstration within the designated area under SOCPA 2005 would be an abuse of process and unlawful.