The bypass of justice

The Guardian, Tuesday April 9,1996

Solicitors say police and private agencies at Newbury have been cavalier with the law. As the courts prepare to deal with protesters, John Vidal reports on state power in action.

King Arthur had a bad Tuesday last week. First, a high Court judge refused his appeal to stop the Newbury bypass trashing Camelot on environmental grounds. Undeterred, the self-appointed sovereign faxed the Queen inviting her to make a state visit to his court in the water meadows. His message was simple: "Camelot is in danger. Let monarchs talk".

The state, in the guise of Andover solicitor Nicholas Blandy, under sheriff for Berkshire, gave Arthur short shrift. He was dragged out of his camp by a blasted oak tree, bundled off to Newbury police station and charged with criminal trespass. Hours later, Blandy could report that the bypass route had been successfully handed back to the state (in the form of the Highways Agency). But, in a final scene worthy of a Carry On film, the sheriff was reportedly chased off the site by one of Arthur's regal swans.

Aside from the farce, and the tragedy of several people on both sides being seriously injured, the third battle of Newbury was one of the greatest displays of state power exercised against the civil society in recent years. But, unlike their role in other disputes, the police were not to be as overtly confrontational. The exercise of physical and psychological muscle against the largely peaceful protests was left to the private sector: security firms, detective agencies, bailiffs and climbers.

Newbury was also marked for astonishing uneven-handedness. The protesters, and many independent observers who witnessed the evictions, complained that lives were regularly -- and illegally -- put in danger, that health and safety laws and guidelines were ignored, that excessive force was used against protesters, and that justice was remote and partial.

"They have good reason to be upset", says Leeds solicitor Alan Bridger, a criminal lawyer who spent weeks at the protest as a legal observer. Many protesters, he says, were beaten up without any of the assailants being properly investigated. "In the last week there were many complaints of the misuse of handcuffs by the police and acts of sadism by the climbers".

Even when protesters had been injured badly, no statements were taken from protester witnesses, only from bailiffs and evicting climbers, who were themselves involved in the incident. When protesters had their car tyres slashed by bailiffs' climbers -- with witnesses and photographic evidence to hand -- no action was taken by police.

The complaints are as much about what did not happen as what did. Protesters claim they had no access to the law, legal observers said they were kept away from flashpoints and the police were accused of never using their discretionary powers of arrest for the protesters.

Despite scores of verbal and written complaints (the Health and Safety Executive received more than 40 in just one morning) not one person in the employ of the state was cautioned, let alone arrested. In three cases taken by the police to the Crown Prosecution Service, prosecutions were said not to be in the public interest. The final score of 768 arrests to nil, like the manner of Mr Blandy's alleged exit from Camelot, was thought to be too unlikely to be true.

"Newbury was a highly political use of the law", says Michael Schwarz, of the law firm Bindman and Partners, who represented many of the protesters. "The protest was identified from the start as a challenge to the state, to the planning and inquiry system, to law and order and to capitalistic interests. The response was a fist of iron in a velvet glove. You don't often see it."

"Very self-consciously, the police tried to be impartial", says Lorna Johnson, of solicitors Douglas and Partners in Bristol, who spent six weeks liaising between protesters and authorities. She says there were occasions when the police took tactical decisions not to see certain things or be in certain places.

However, the police role is seen as far more political in the background, especially in the way draconian bail conditions were imposed to disperse protesters. To start with, there was no question of people being cautioned. Using new powers under the Criminal Justice Act 1994, the police imposed bail conditions unheard of except in political situations or for people with previous histories of skipping bail or serious assaults.

Protesters were not just bailed well off the site, but often made to return home and report to police stations every day as well. This effectively prevented many of the most committed from return. "There was a blanket policy to use bail conditions punitively. It was tantamount to a curfew", says Bridger. "Attempted murderers can receive less stringent conditions", says Johnson.

These bail conditions were slackened in the last few weeks of the protest, to the point that protesters talked of having "two lives" -- a first, formal caution if they admitted guilt and spent a night in the cells, to be followed by automatic criminal charges on the second occasion. Says Schwarz: "This gave protesters an incentive to admit guilt in order to return to the protest site. Even if they were bang-to-rights guilty their view was that they had done nothing wrong and the police should have had to prove their case."

The second area where the law was seen to be exercised partially was in the application of health and safety workplace standards. The HSE, which oversees workplace safety, was widely criticised for only visiting Newbury 13 times in the first 80-odd days, discouraging complainants and not making itself accessible on site. Complaints were made about overloading machinery, the inadequate training of climbers employed to bring protesters out of the trees, and, especially, the irresponsible and dangerous felling of trees and cutting of walkways with people in them.

The thrust of the HSE's defence has been that it did not have the resources to be there all the time, that the protesters created hazards, and that health and safety laws were not designed to be used in conditions of "civil war". In a letter to Bridger, the executive's head argues that usual rules could not apply in protests. The implications of this are enormous and will be tested in forthcoming prosecutions.

The passing of the buck infuriated observers: Blandy himself said that protesters forfeited their rights to protection in law. "They are the authors of their own misfortune", he said. "He's plain wrong", says Bridger. "A duty of care is owed to the protesters."

Stipendiary magistrates are expected to rattle through hundreds of cases next month. Roughly 40 per cent of the arrests were made under the CJA for criminal trespass, another 40 per cent for obstructing the bailiffs, the rest under trade union law designed to deal with secondary picketing.

The magistrates will have to consider the bizarre and test the new: one prominent local protester was charged with disorderly, for saying "this ****ing government"; a man was arrested for singing; both halves of a pantomime cow were charged with criminal justice (the front half is pleading guilty, the back half may plead not guilty on the grounds that it could not possibly see that it was breaking a security cordon).

Meanwhile, say civil liberties solicitors rubbing their hands at the prospects, the very CJA laws designed to stop environmental protest may now be used to examine the legality of the work that the protests were trying to stop. "It's the most exciting legal field", says Johnson.