The Public Prosecution Service has today issued decisions not to prosecute in relation to all suspects reported in connection with attendance at Black Lives Matter (BLM) protests in June 2020.
A total of 14 suspects were reported to the PPS for consideration of potential offences under the Health Protection (Coronavirus, Restrictions) Regulations (Northern Ireland) 2020 at one or more of three BLM protests held in Londonderry and Belfast whilst Government restrictions were in place last summer.
The decisions not to prosecute relate to:
- Three individuals reported in connection with a protest held outside Belfast City Hall on 3rd June 2020;
- Seven individuals reported in connection with a protest held at Custom House Square, Belfast, on 6th June 2020;
- One further individual reported in connection with both of the above protests; and
- Three individuals reported in connection with a protest held in Guildhall Square, Derry, on 6th June 2020.
After careful consideration of all evidence reported by the Police Service of Northern Ireland (PSNI) on six files relating to the 14 individuals, it was concluded that the Test for Prosecution was not met in respect of any suspect on evidential grounds.
Assistant Director Martin Hardy said: “Decision making on this file included consideration of a range of complex and novel legal issues arising from the Coronavirus Regulations in place at the time of these protests and relevant human rights considerations. It also involved a careful analysis of the particular circumstances of these protests and the conduct of the individuals reported.
“The evidence received from police was subjected to an impartial and independent application of the Test for Prosecution, in line with the PPS Code for Prosecutors. The prosecution team was also assisted by advice received from independent Senior Counsel.
“It was concluded that, in respect of each of the 14 individuals reported, there was no reasonable prospect of conviction for any offence. This was on the basis that the evidence would allow the suspects to successfully raise the statutory defence of reasonable excuse. In these circumstances the Test for Prosecution was not met.”
Among the factors which were relevant to the application of the reasonable excuse defence were:
- The potential breadth of the reasonable excuse defence and the need to interpret the Regulations and the defence in accordance with rights guaranteed by Articles 10 (freedom of expression) and 11 (freedom of peaceful assembly) of the European Convention of Human Rights.
- The fact that the gatherings involved protests relating to a matter of important social concern, were peaceful, and were organised in a manner that sought to minimise any risk of transmission of the virus. For example, steps taken at the different protests included encouraging social distancing by arranging the attendance of stewards, marking the ground with chalk squares and delivering relevant announcements by loud speaker. Protestors were also encouraged to attend in smaller groups of no more than six; and masks and hand sanitiser were also made available.
- The presence of provisions within the Regulations which created, in certain respects, a lack of legal clarity as regards what activity would be lawful. These included the absence of any definition of a “gathering” or what constituted “outdoor activity”; the absence of any provisions (at that time) dealing specifically with gathering for the purposes of protest; the tension within the provisions that allowed unrestricted numbers to gather for the purpose of an outdoor film, live concert or theatre performance; and the fact that the reasonable excuses specified within the Regulations were non-exhaustive.
- Issues in relation to the proportionality and consistency of the policing approach to different protests, as set out in a report published by the Police Ombudsman for Northern Ireland pursuant to Section 62 of the Police (Northern Ireland) Act 1998.
Martin Hardy added: “The PPS can only bring a case before a court when, after a thorough consideration of all relevant matters, it is concluded that the evidence provides a reasonable prospect of conviction.
“The conclusion reached in relation to these 14 individuals – who were seeking to safely exercise their right to freedom of peaceful assembly and expression on an important social issue – is that there is no prospect of conviction in relation to any offence.”
NOTES TO EDITORS:
1. PPS decisions are taken in accordance with the Test for Prosecution, which involves two stages. The Test for Prosecution is met if, in relation to an identifiable suspect, the available evidence is sufficient to provide a reasonable prospect of a conviction (the Evidential Test) and if prosecution is in the public interest (the Public Interest Test). Further detail is contained in the Code for Prosecutors which can be read by clicking the link.
2. Of the 14 individuals reported, three were reported after challenging a Fixed Penalty Notice (FPN) the PSNI administered in relation to a protest.
3. The six police files relating to the Black Lives Matter protests were received by the PPS on a number of dates between August and December 2020.
4. The Police Ombudsman for Northern Ireland report referred to above was published on 22nd December 2020 and is entitled ‘An Investigation into Police Policy and Practice of Protests in Northern Ireland’. It can be found by clicking the link.
5. Media queries for the PPS should be referred to the Communications Unit by emailing firstname.lastname@example.org inside office hours. The out of hours press officer can be contacted on 07920 271 804 or 07795 480234.