Scottish Guide

Please Note

This guide will be made available in booklet form closer to July.

This guide is correct as at the beginning of March 2005. Anyone reading this at this point should be aware that the law may change between now and July.

Please check back nearer the time (any changes will be flagged).

Introduction
(...) The purpose of this booklet is to give an overview of the policing operation likely to be deployed in Scotland and an introduction to laws affecting protesters. Armed with this knowledge we hope that protesters will be able to challenge the police and assert their right to protest - a right increasingly under threat in Britain. The role of the police is to intimidate protesters and frustrate and prevent meaningful forms of action. Asserting the right to protest inevitably means to resist this. In writing this booklet we have been able to draw upon the experience of J18, Mayday and other actions in England, the policing of the Faslane peace camp and of previous international mobilisations. The police in Britain are often referred to as “cops” or, less politely, as “plod”, “pigs” or “filth”. Getting arrested is frequently called getting “nicked” or “lifted”. Scotland is one of four countries that make up the UK, commonly referred to as ‘Britain’. References to ‘mainland Britain’ are to England, Scotland and Wales. There are no border regulations between the four within the UK.

Scots Law
Scots law differs in fundamental respects from many European legal systems. There is not one clear statute or code setting out the different criminal offences. Nor is there a collection of statutes defining most offences as in England, Wales and Northern Ireland. Scots law is heavily based on common law. (...) Those who have some familiarity with English law should be very wary about how they apply that to Scotland. Some examples of differences will highlight the need for caution: there is no such thing as PACE; breach of the peace is a criminal offence for which persons must be given a full trial before they can be punished in connection with it; ASBOs are not as broad and there is no such thing as the Offences Against the Person legislation, of “riot”, “affray” or “criminal damage”.

Giving Your Name and Address
In general you do not have to give your details to the police or answer their questions but giving a false name or address can be an offence. We advise you not to give your name and address, as this will be added to their intelligence database, and to say no comment to any other questions.

There are three circumstances when you are required to give your name and address:

If the police reasonably suspect that you have committed an offence, or have potentially witnessed an offence. This applies to any offence whatsoever. [Criminal Procedure (Scotland) Act 1995, s. 13] If they demand this they must tell you the general nature of the offence involved. Failure to give your name and address, or giving false details, is an offence (punishable by a fine) and an officer can arrest you if he suspects you of an offence. If you are a suspect you can be made to stay a “reasonable time” so that your details can be checked, but this would probably be no more than the few minutes necessary to do a check by radio, or by referring to any ID you volunteer (although there is no legal obligation to carry or show ID). If you are a suspect you may be invited to comment as to why the officer is suspicious of you, but you do not have to make any comment. You are under no obligation whatsoever to give any further details and we advise you not to.

(......)

Dealing with the Police
This is largely a matter of common sense and depends on the exact circumstances. However, here are a few tips:

•	Be calm and assertive.

•	Ask to speak to the senior officer present (PCs know nothing anyway).

•	Try not to lose your temper or swear (this may be used as an excuse to arrest you).

•	Lay off the drink (this may also be used as an excuse to arrest you).

•	Keep a watchful eye out for other police and other protesters.

•	Look after each other.

Public Order Policing Tactics

Policing in Britain is via regional police forces - there is no national force. However, an officer from any Scottish force has full police powers anywhere in Scotland and it may be that English police are sworn in Scotland for the G8. All police officers up to the rank of Sergeant are required to display ID letters and numbers on their lapels, although officers in riot gear frequently cover them up. Police Support Units (PSUs) are the riot police and therefore the most violent. They will usually wear boiler suits, if not full riot gear. Other police receive minimal riot training, but are also issued with riot gear. Police in Britain are issued with metal retractable batons, which cause nasty head wounds but minimise the risk of brain damage or death. Long side handle (US style) batons are also in use, but less favoured. CS gas is issued, but not often used - guidance refers to life threatening situations. Pepper spray is used, not generally in crowds, but mostly when making arrests by spraying in the face. Water cannons have never been used on the British mainland but are being talked about.

Horses are used for sealing off streets or to guard buildings and to break up crowds. Dogs are also used, mostly to protect key buildings and at roadblocks, but given the rural nature of Gleneagles they may be more widely used - a warning should be given. Roadblocks have been widely used in the past.

In Britain the police favour close contact public order policing. The main tactic is to divide very large groups of people into smaller groups and surround and contain them, sometimes for hours, before dispersing one by one.

Continuously moving about can make this more difficult for them. When they fail to divide groups, riot police are sent in lines to break up and disperse crowds, by hitting out with batons at peoples’ heads. Mounted (horseback) police are also used in the same way.

The police also use teams of snatch squads to make arrests. These consist of 6 officers in a triangular pattern, with the outer police protecting the arresting officer.

The police also make wide use of photographers, video camera operators, helicopters with video cameras (which take surprisingly clear footage) and evidence gathers, who record a running commentary. Forward Intelligence Teams (FIT) are police issued with photos of known activists, who they follow. Despite their title their main role is harassment. The Courts also routinely order the mainstream media to hand over their photos and video - they never defy a Court order.

Special Branch and the FIT also liaise with their counterparts abroad, sharing intelligence etc.

=Stop & Search=

Conducting searches: general
There is no general right for the police to search you. There are exceptions to this, for example under the Misuse of Drugs legislation, if they have reasonable grounds to suspect you of possession of illegal drugs. The police may search you upon detention or arrest, provided the conditions for detention or arrest are satisfied (see section 6 below).

The police will often try to get people to co-operate where they have no legal power to compel them to do so. If you allow them to search through your bag, for example, anything they find may be used as evidence against you in any trial, even if they had no legal power to compel you to submit to a search. Whenever the police want to search you, be sure to find out whether they are just trying to get you to co-operate or they have actual legal authority to do so. Therefore you should ask them to identify the power they are using and remember what is said. If they have no legal authority then we advise you not to co-operate.

The police can only carry out a “pat down” search unless you have been arrested, and you are only required to remove outer clothing (e.g. a coat) in public. You have the right to be searched by an officer of the same gender. You are not required to give a name or address.

Conducting searches: Section 60 Orders
In short this can be defined as the power of the police to stop and search in anticipation of violence. The first thing to note is that actual violence is not required. If an inspector believes that incidents involving violence are likely to occur and it is necessary to do so to prevent their occurrence, he may give authorisation to stop and search people and vehicles within a specified area for up to 24 hours.

It is almost certain that Section 60 Orders will be authorised throughout the G8 summit.

Once in force the uniformed police of any rank can stop people and vehicles and search them for weapons or dangerous instruments (e.g. knives). No suspicion of that person or vehicle is required. Any weapons or dangerous instruments may be seized. The general advice concerning searches above applies (i.e. pat down only, officer of same gender etc.).

The search should not be used to discover identity or for any other purpose, so items too small to conceal a weapon or dangerous instrument should not be searched (e.g. wallets). It is does not entitle them to read any papers, etc. they may find.

Anybody can take anyone’s photograph in the U.K. Therefore the police can take a photograph of you and they may do this whilst performing a s.60 search. You do not need to co-operate with this, unless you have been detained or arrested. You do not have to give your name and address, explain why you are there or answer any questions.

The (uniformed) police can also require that any item be removed which the police think is wholly or mainly for concealing identity (e.g. masks). The police can also seize any item which they reasonably believe any person intends to wear wholly or mainly for that purpose, e.g. if a mask is found in a bag during a search. Failing to remove an item when required to do so by a police officer is an offence (see also Masks in section 2 above).

The power to routinely stop and search under s.60 has sometimes been used in combination with police cordons to keep people confined (even tourists on one Mayday in London) as a crowd for significant lengths of time, only allowing people to leave once they have been searched and the police have had an opportunity to take photographs. There is no right to detain people without reason under s.60 whether in public as a crowd or otherwise. Therefore reasonable force could be used to leave the cordon.

You have a right to be given a written record of the search, even without giving your name or address.

Conducting searches: Section 44 Terrorism Act
Although supposedly a law passed to prevent terrorism, this provision has been used against anti-war and anti-arms fair protesters in England, so it may be used at the G8 in Scotland.

In many ways it is the same as Section 60, i.e. there need be no specific suspicion for the search, but here the purpose of the search is wider, for items of a kind which could be used in connection with terrorism (and “terrorism” is defined very broadly). The general advice concerning searches above applies (i.e. pat down only, officer of same gender etc.). They can read any papers etc. you have with you in order to determine if they could be connected with terrorism.

You do not have to give your name and address, explain why you are there or answer any questions. You do not have to comply with any attempt to photograph or record you. You have a right to be given a written record of the search, even without giving your name or address.

After You Have Been Searched
Keep the Search Record or any other documentation the police give you (or make a note if you don’t receive one). Make brief notes about the search while you still remember all the details - name, number and police force of the police officers and the time and the events preceding the search. You should also note the specific wording used by the police to explain their authority to search. This may be helpful later.

If you are searched under s.44 please complete and submit Liberty’s search monitoring form

=Restrictions on Movement: General=

It is an offence for someone on foot as part of a group of two or more persons to obstruct another person passing through a public place, if they fail to desist on being warned by an uniformed police officer. It is also an offence for an individual on foot to “wilfully” obstruct someone’s passage. The maximum penalty is a £500 fine. [Civic Government (Scotland) Act 1982, s. 53] Restrictions on Movement: Assemblies and Parades

Where a public procession is planned, the local council should be given at least seven days advance notice. The council may prohibit a procession, or may impose conditions, for example the date, time and duration. It may prohibit the procession from entering specified public places. [Civic Government (Scotland) Act 1982, ss. 62-62]

The most senior police office present at the procession can also impose various conditions on that procession if he believes the procession may cause serious public disorder, damage or disruption to the life of the community, or if it is intended to intimidate. They can impose conditions on an assembly that relate to its place, maximum number and duration. It is an offence to breach these conditions unless you can prove that matters were beyond your control. [Public Order Act 1986, ss. 12 and 14] Assemblies must consist of at least twenty persons and be at least partly in the open air. Processions must occur in a public place. [s. 16.]

Where the chief constable (chief of the local police) reasonably believes that an assembly is intended to be held on private land or land to which the public’s access is limited, in the open air, without permission of the occupier of the land, the chief constable may apply for an order from the local council which, if approved, has the effect of banning all assemblies in the area designated by the order. The order must not apply to an area larger than a 5-mile radius or for longer than 4 days. Within the designated area an uniformed constable may direct persons whom he reasonably believes to be on their way to a banned area to go in a different direction than towards the assembly. [Public Order Act 1964 ss. 14A, 14B, 14C]

Restrictions on Movement: ASBOs
Anti-Social Behaviour Orders (ASBOs) do operate in Scotland but they are different from those in England and Wales. They are unlikely to be used here (if they are they would have to be imposed in advance in court).

=Detention and Arrest=

The police have two separate powers: detention and arrest.

Detention

You may be detained if you are reasonably suspected of having committed an offence that is subject to imprisonment (an example would be breach of the peace). [Criminal Procedure (Scotland) Act 1995, s. 14] You need to be told that: (a) you are being detained and (b) what you are being detained for. You cannot be held in the legal state of “detention” for more than six hours, after which time you must either be released or arrested.

If you are detained this may be because there is not sufficient evidence yet to have you arrested, and that they wish to question you. You do not have to give any information apart from your name and address. You do not have to give details about your occupation, your plans for the day, nor do you have to explain any items of clothing you are wearing or any bits of paper that you are carrying. We advise you to say no comment to any questions. You may want to give your date of birth as this can speed up release, but this is not legally necessary.

Whilst you are detained you have the right to have a person informed of your place of detention. In some circumstances this right may be delayed for the investigation or the prevention of crime or the arrest of offenders. [s. 15, 1995 Act] You may want to use this right to contact the G8 Legal Support Group. You have a similar right to also have a solicitor informed of your detention, though you have no right at this point to speak to a solicitor.

Arrest
The general power of the police to arrest is defined at common-law so there are no certain criteria. As a working rule if they reasonably believe you have committed an offence you may be arrested. This is the practice where you are caught in the act. Otherwise it is usual to detain you.

You will usually be arrested by two officers. You should be cautioned and anything you say after that point to any police officer can be used as evidence. You do not have to give any information apart from your name and address. You may want to give your date of birth as this can speed up release, but this is not legally necessary.

You may, depending on the circumstances, be processed at the scene. In this case you will be taken to a police van, formally charged, asked a number of questions (we advise you to say “no comment” until you have consulted a solicitor) and photographed (the photograph at this point will be a “Polaroid” of you standing between your arresting officers). You will be asked if you understand the charge and if you want to say anything in response (we advise you not to reply). You will then be put into the van and taken to the police station while your arresting officers return to the action. If you are not processed at the scene then your arresting officers will accompany you to the police station. At the station the procedure will be essentially the same whether you were processed at the scene or not (i.e. you may be asked all the same questions again).

Once at the police station, you may be kept in the van for a while or put in a holding cell if the station is busy. Eventually you will be brought up in front of the custody officer. Here you will be asked a whole range of questions. You only have to give your name and address - we advise you not to answer any other questions. You may want to give your date of birth as this can speed up release. You will be searched and all your possessions put in a bag in the custody office. (You will be asked if there is anything sharp in your pockets first and warned that it’s an extra offence not to tell them if there is). You will be asked if you want anyone informed that you are there. You have the right to have a person informed of your place of detention. You may wish to use this to contact the G8 Legal Support Group.

You also have a right to have a solicitor informed of your arrest. We advise you to contact a solicitor and to say no comment to any questions until you have spoken to your solicitor. A list of solicitors will be available from us nearer the time

If you have any dietary requirements make sure you tell the custody officer (he may not ask). If you have been hurt in any way you should demand to be seen by a doctor. If you are on any medication or have a medical condition which could require it, then make sure you tell the custody officer at this point. After this you will be put in a cell. Try to relax (sleep if possible - you may be held for a long time). You should be given three meals a day although if you’re arrested in the evening you may not get fed until morning. At some point you will be taken out of your cell to be fingerprinted, to be photographed (properly this time) and they may also take a DNA sample (using a mouth swab). They have a right to use reasonable force to do all these. Remember that you are still under caution so do not chat with the officer who is fingerprinting or photographing you. You may also be questioned and again we advise you to say “no comment”. You may be formally charged when you are being booked in or you may be taken back out of your cell later for this. You will be asked if you understand the charge then if you wish to make a reply (we advise you not to reply). You may be transferred to another police station at some point.

You will be either released, asked to sign an undertaking (see section 7 below) or held until the next working day for court. If you are released please contact the G8 Legal Support Group and let us know you’re out. Arrest can be a very intimidating experience. It can also be a very boring and slow-moving one. Stay calm, relax when you can, remember your rights and you’ll soon be out.

Juveniles
Anyone aged 16 or over is treated as an adult in Scots law. If you are under 16 and are arrested then the police will inform your parents. They may also (especially if you live abroad or your parents cannot be contacted) inform Social Services. They may refuse to release you until your parents come to pick you up. (If you are coming to the protests with an adult other than your parents it’s worth that person bringing a letter from your parents authorising them to act on their behalf - the police don’t have to accept this but it can help). They could, if your parents are unable to attend the police station or are uncontactable, hand you over to Social Services.

If you are under 16 then you should not be interviewed without a ‘responsible adult’ being present (parents or social worker etc.) and you should not be put into a cell with adults.

Bail, Undertakings & First Court Appearance
The police have three options as to how they deal with you. They can keep you in custody until a court appearance. They can release you with a report being sent to the Procurator Fiscal (prosecutor) for them to consider whether to prosecute. Alternatively they can release you on an undertaking to appear in court in the next few days. An “undertaking” is used if it seems unnecessary to detain you for court, but the matter is such that it will be dealt with comparatively urgently. If there are doubts about your identity or address an undertaking may not accepted. You are not required to sign an undertaking but it may increase the likelihood of you being held for court if you refuse.

If you appear in court from custody you will be told the basic accusation against you. Most people will appear in court on a “complaint”. This sets out the charges you are accused of, and will be the document that any subsequent trial is based on. If you have been served with a complaint, the Procurator Fiscal will prosecute you summarily (that is without a jury). Anybody who appears on a complaint must be tried within a year of their first appearance.

There is no right to choose jury trial. Certain crimes can only be tried summarily, others must be tried with a jury. Where there is a choice, it is Procurator Fiscal’s choice and his decision will turn on the likely sentence you may receive if convicted. You can be tried summarily in the district court or the sheriff court, or with a jury in the sheriff court. Where you are tried summarily you will appear either before a professional judge (a sheriff or in Glasgow possibly a stipendiary magistrate) or before a lay judge or judges (up to three depending upon the local custom).

There are lower limits to sentences where there is no jury, generally three months imprisonment in the sheriff court.

For very serious matters you will appear “on petition”. If you appear on petition the Procurator Fiscal intends to prosecute you “on indictment” with a jury trial. At the first hearing you may be asked questions in court by the Procurator Fiscal, and asked whether you wish to make any other comment (“judicial examination”). You will have an opportunity to consult a solicitor privately beforehand, and your solicitor will be present during this questioning. There is no obligation to answer any questions or make any comment whatsoever. If you do not answer questions and later rely on something (such as an alibi) which you could have mentioned at this point, the Procurator Fiscal or judge may make a negative point about this, but the fact is that it is almost routine for an accused not to make any comment whatsoever on legal advice.

If you appear in court from custody you can apply for “bail” so that you remain at liberty until the trial (which may be many months away). Bail is more likely where the police can confirm your address in the UK. Conditions can be attached to bail, such as a curfew requiring you to stay at home or preventing you from going to a certain area (e.g. Nuclear protesters have had bail conditions imposed preventing them from being near nuclear arms bases). If you are from abroad you may be required to surrender your passport. Requiring the payment of money as security for your subsequent appearance is virtually unheard of, although legally possible.

Most people will appear in court having been released earlier by the police.

Also most people appearing in court from custody will be released on bail. Again most people will be tried summarily rather than on indictment. The more serious the allegation, or previous criminal record, the more likely that you will be kept in custody for a court appearance, refused bail and be tried on indictment.

It is our experience from previous large protests (e.g. J18 and Mayday) that people who plead guilty at their first court appearance are more likely to receive a harsher sentence as the judge wants to make an example of them. Also remember that the longer a case goes on the more chance there is of the prosecution making mistakes and you getting acquitted.

=Laws Commonly Used Against Activists=

Here we set out some of the offences that demonstrators may be charged with. We have not included every crime, nor even every crime that could be committed in a political context. So we have left out murder and treason, as activist are less likely to be charged with these offences. That doesn’t mean these crimes don’t exist, nor does it mean that extraordinary incidents might not happen or that people won’t be fitted up for serious crimes they did not commit (e.g. Wilson Silcott for the murder of PC Blakelock at the Broadwater Farm riots)

You should bear in mind that most offences in Scotland are very broad, common law offences. Since they cover such a wide range of situations under the one heading the maximum for that offence may be life imprisonment but you may be charged with it for something very minor and come out with a £50 fine. If you are tried summarily then the maximum is much reduced.

Breach of the Peace

Breach of the Peace (BoP) is a very wide ranging offence, which you can be arrested for. Unlike in England, you can be convicted rather then just bound over. Sentence would usually be a small fine although (as it is a common law offence) there is no maximum sentence.

In theory, BoP requires conduct severe enough to cause alarm to ordinary people and threaten serious disturbance to the community. It should be conduct that is genuinely alarming and disturbing, in its context, to any reasonable person ... it is clear that something substantially greater than mere irritation is involved. BoP cases also sometimes refer to breach of public order or a breaking of the social peace. You can be convicted of BoP even if no-one present was actually alarmed, if any reasonable person would have been had they been there. But, if there is no evidence of actual alarm, the conduct must be flagrant if it is to justify a conviction. ‘Flagrant’ is a strong word and the use of that word points to a standard of conduct which would be alarming or seriously disturbing to any reasonable person in the particular circumstances.

People are often arrested for BoP for simply refusing to do what a police officer told them to do, but if all you have done is refuse to do what you’re told you shouldn’t be convicted. However, refusal to comply with a police request can be a substantial part of a BoP charge as long as there is other stuff as well (e.g. blocking the road).

In practice BoP is wide open to almost any interpretation. Some courts have consistently convicted for BoP people who merely sat peacefully in the road despite evidence of the good natured atmosphere and total lack of alarm even from the police witnesses.

Mobbing

Mobbing is effectively a collective breach of the peace. The mob must be in pursuance of a common purpose. The common purpose may arise spontaneously. “Intimidation” may occur through sheer mass of numbers. It is treated more seriously than breach of the peace. Any person who is part of a mob is also criminally liable for any act of any other member in pursuit of the common purpose. So if you were part of a mob that went about smashing up windows you could be found guilty of malicious mischief in damaging windows even if you didn’t break any glass yourself, providing you were supporting it and were doing so for the common purpose of general vandalism.

Because of the difficulties with common purpose it is rarely prosecuted.

Malicious Mischief (Criminal Damage) & Vandalism

Malicious Mischief or Damage is the deliberate or reckless damage of property (in England it would probably be called Criminal Damage). Malicious Mischief includes interfering with property in a manner that causes loss. If you press a fire alarm, that will cause profits to be lost even if there is no physical damage. Covering a CCTV camera with a plastic bag does not necessarily constitute Malicious Mischief in itself, if no economic damage is actually caused.

Causing damage by fire is prosecuted as Wilful or Culpable and Reckless Fire-Raising and is treated as more serious than ordinarily damaging property.

Vandalism is a minor offence which consists of intentionally or recklessly causing damage without reasonable excuse. [Criminal Law (Consolidation) (Scotland) Act 1995)]

Usually the same conduct could be prosecuted as either vandalism or Malicious Mischief. There is no requirement of permanent damage (e.g. chalking could constitute either vandalism or Malicious Mischief). The maximum sentence for vandalism is three months, or if there is a previous conviction for vandalism six months. Fines are more common. The maximum sentence for Malicious Mischief is unlimited.

(......)

There is also a specific statutory offence of Assaulting or Obstructing a Police Officer in the Course of their Duty [Police (Scotland) Act 1967] which allows a sentence of up to nine months imprisonment to be given without jury trial, but in the absence of aggravating circumstances or a bad criminal record it will usually be dealt with by a fine. Obstruction does not require any act of physical resistance, it includes remaining immobile when arrested so that you have to be carried, though this is rarely prosecuted. Obstruction does not include refusing to answer questions that you are not obliged to answer. Reckless endangerment or injury is where a person puts another person or the public in danger in circumstances that show a severe lack of care. For example, if someone throws a brick through a window to vandalise a shop, and the brick collides with an employee, the person may be convicted of reckless injury even though they intended no injury to occur.

Trespass

Trespass is entering private property or land without the permission of the owner. It is only an offence to commit trespass in combination with: a) occupying a premises or a building, b) encamping on land, c) lighting a fire on or near a roadway, or, d) lighting a fire on or near cultivated or enclosed land. The maximum penalty is a fine of £200 although the police may arrest you for this offence. This power has been used against workers conducting a “lock-in” at their workplace. [Trespass (Scotland) Act 1868]

There is also an offence of aggravated trespass. Unlike in England, it only applies to land in the open air. If a police officer reasonably believes that you are trespassing so that you can disrupt or obstruct lawful activity you can be required to leave. If you do not leave, or if you return within three months, that is an offence in itself. The maximum sentence is three months imprisonment. [ss. 68 and 69, Criminal Justice and Public Order Act 1994]

Terrorist Offences

Although possible we think it very unlikely that anyone will be charged with an offence under the Terrorism Act (although it is very likely that the Terrorism Act stop & search powers will be used). If you would like more information about the Terrorism Act we suggest you read the Liberty briefing.

=Conclusion=

Having read this far, we hope you are not disheartened. Remember all countries have large police forces and similar laws. The difference is in the detail. We have provided this information in the belief that knowledge can be empowering.

The right to protest is also enshrined in law: Article 10 (Freedom of Expression) and Article 11 (Freedom of Assembly and Association) of the European Convention on Human Rights are also part of UK domestic law. In practice, the way in which the police respond depends on the effectiveness of the protests and the numbers involved.

Check also Legal Stuff