March 26th: Police and personal detailsTagged as: 26march legal
A brief outline on the legal situation in terms of providing police with personal details that may be useful during March 26th demo. Here’s the position as we see it (in England and Wales anyhow).
You do not have to give your name and address unless under a specific legal obligation (Rice v Connolly 1966). Refusal to give your name and address cannot amount to obstructing the police in the course of their duty under s89(2) Police Act 1996 but giving a false name and address can (Ledger v DPP 1991). Note this is pre-Human Rights Act and the case has been criticised by legal academics and not surprisingly as the defendant said his name was “Freddie and the Dreamers”. In general you can use any name you like unless it is for an illegal purpose. There are however a number of laws which make refusal or giving a false name and address to a constable a crime (see below). All have a maximum penalty of a fine.
You DO NOT have to give your name and address as a requirement of being allowed to leave the kettle. The cops often ask people for their name and address as a condition of leaving a kettle. Frequently in conjunction with a search for weapons under section 60 Criminal Justice and Public Order Act 1994 and a demand to remove masks under s60AA of the same act. As they have to fill out a stop and search form it makes it look more official and tricks many people into giving details they don’t have to. Kettlings legal basis is totally separate from stop and search being the common law duty to prevent a breach of the peace (Austin v Met Police 2009) and also gives no power to take people’s name and address.
The cops presumably will claim that being willing to give your name and address makes you less likely to breach the peace and thus can be safely released but this has not been tested in court. It seems feeble reasoning but the courts give the cops great discretion in carrying out their duties however dimwittedly they do so. For example in the very first kettle at Euston 30th November 1999 the cops asked people if they had come to protest peacefully or violently
Stop and Search
You DO NOT have to give your name and address, whatever type of search is carried out. This includes s43 & s44 Terrorism Act 2000, Section 60, Conservation of Seals Act, Protection of Badgers Act, the lot.
If you are reasonably suspected of a crime a cop may arrest you if, and only if, it is necessary for a reason listed in s24 Police and Criminal Evidence Act 1984. One of these is if they cannot ascertain your name or address. In theory for a section 50 you could be arrested on this ground, then give your details released by the police and then summonsed for not giving your name and address! You are under no legal obligation to give your name an address at any stage in the police station.
Some situations where you are obliged to provide details:
1. Anti Social Behaviour (s50 Police Reform Act 2002)
- If you are reasonably believed to be committing anti-social behaviour. Anti social behaviour is defined as behaviour likely to cause Harassment Alarm or Distress the same as the offence under s5 Public Order Act 1986. Given that, any prosecution should be tied to a s5 (or more serious) offence. A stand alone case seems to invalidate the “reasonable belief” as if the constable had reasonable belief (a higher standard than the reasonable suspicion he would require to arrest for s5) why isn’t it being prosecuted? Presumably because the Crown Prosecution Service don’t think his belief credible enough to give at least a 50% chance of conviction.
We know of no test case on section 50. If and when one arises we imagine the following arguments to be used on appeal against conviction disregarding disputes as to the facts.
- Necessity. You didn’t want to give your address to the police as you feared it would be used by them to harass you or they would give it to the press or far right groups making you vulnerable to attack.
- European Convention on Human Rights (ECHR) Article 6 – Fair Trial. The argument is you should not have to incriminate yourself by remaining silent. This failed in Strasbourg for a motoring case but this may be different.
- ECHR Article 8 – Privacy and Family Life. Intrusions have to be not only lawful but “proportionate” and “necessary in a democratic society“.
- ECHR Article 10 & 11. Freedom of Expression and Freedom of Assembly. Being forced to give your details on a demonstration would have a “chilling effect” on legitimate protest.
2. Driving (Road Traffic Act 1988 s163-168)
- If you are the driver of any vehicle including pedal cycles you can be required to give your name, address and date of birth.
- Pedestrians reasonably suspected of failing to obey directions of a constable directing traffic (s37 Road Traffic Act 1988) who fail to give details commit a crime under s169 Road Traffic Act 1988
- If you are a reasonably suspected of poaching in daytime ( s31-31A Game Act 1831)
- disrupting a public meeting (Public Meeting Act 1908) or
- disrupting an electoral meeting (S97 Representation of the People Act 1983)
- Pedlars must give their name and address on demand to a constable (S17 Pedlars Act 1871)
Police Community Support Officers
- There are different rules for PCSOs bizarrely giving them wider powers than the police to demand your name and address if they reasonably suspect you of certain offences or anti-social behaviour (schedule 4 Police Reform Act 2002)