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M25 arrests review

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10:15 23/11/2022

Hertfordshire Constabulary has received the independent review report surrounding the circumstances of the arrests of journalists during the policing response to the M25 “Just Stop Oil” protests earlier this month.

Chief Constable Charlie Hall said: “I fully appreciate the legitimate concerns raised by the arrests of the journalists, which was why I commissioned the review.  I also rang and apologised to the accredited journalists who we arrested on 11 November. 

“Whilst the review has correctly concluded that the arrests of the journalists were not justified, and that changes in training and command need to be made, it found no evidence to indicate that officers acted maliciously or were deliberately disproportionate.  They made mistakes and I now reiterate my apologies.

“The review also affords some valuable learning, which we are acting on immediately, so that it can be used when policing future protests, and we will also be sharing the learning nationally.”

The independent review has made five recommendations, all of which Hertfordshire Constabulary welcomes. The constabulary has immediately made changes in line with these recommendations.

These changes include:

  • A further review to ensure that any Public Order Public Safety officers and commanders who have not yet carried out the College of Policing National Union of Journalists awareness training are identified and do so within 30 days;
  • Directions to ensure that all commanders have immediate access to co-located mentors, loggists, and public order public safety tactical advisors throughout operations;
  • An immediate operational assessment of the number and experience of the Constabulary’s cadre of Public Order Public Safety commanders.

The full recommendations are:

Recommendation 1

Hertfordshire Constabulary should consider selecting commanders with commensurate skills and experience when balanced against the nature of the operation.

Recommendation 2

Hertfordshire Constabulary should consider ensuring that mentors collate with commanders for the duration of the operation.

Recommendation 3

Hertfordshire Constabulary should consider ensuring that all commanders have access to Public Order Safety (POPS) advisors.

Recommendation 4

Hertfordshire Constabulary should consider affording commanders with the ability and capacity to maintain accurate decision logs.

Recommendation 5

Hertfordshire Constabulary should consider ensuring that all officers engaged with public order activity complete the NUJ package and identified learning is shared.

The independent review was carried out by Cambridgeshire Constabulary and can be read below:

Operation Carious

Independent review on behalf of Hertfordshire Constabulary

1. Introduction

1.1 Chief Superintendent Nick Caveney, at the request of Chief Constable Charlie Hall approached Cambridgeshire Constabulary to conduct an independent review to capture organisational learning relating to the arrest and detention of four individuals who identified as being members of the press.

1.2 The objectives of the review provided within the Terms of Reference are detailed as:

A) Consider the circumstances of arrest of those 4 members of the press or those purporting to be members of the press and consider issues of proportionality, legality, accountability, necessity, and ethics.

B) Consider the wider operational direction to officers from the Command Team.

C) Consider training needs of officers working with the press in protest or activism environments.

D) Consider the wellbeing and welfare of officers and how this was managed during a period of intense media scrutiny.

E) Consider the command measures put in place on 08 November 2022 to prevent this from re-occurring, consider the timing of those measures, and any measures which may be considered in future to prevent any such re-occurrence.

2 Operational context

2.1 Just Stop Oil (JSO) is an environmental activist group who strive to coerce the UK government to commit to halting new fossil fuel licensing and production. JSO favours non-violent direction action and civil resistance to create social disruption to generate advertisement for their cause.

2.2 During the week commencing 07 November 2022, JSO announced their intention to conduct a number of protests on the strategic road network (SRN) through non-violent direct action, specifically occupying motorway signage gantries, which would result in significant disruption to the SRN.

2.3 In preparation for the advertised protest activity, Hertfordshire Constabulary convened Operation Carious and implemented a Public Order Public Safety (POPS) Command Structure.

2.4 On 07 and 08November 2022, JSO activists scaled the signage gantries over the M25 at different locations but were swiftly removed by police. Members of the press on a public footpath overlooking the gantries and reporting on the activity were subsequently arrested.

3 Arrests

3.1 The below table captures the arrests made where individuals identified as being members of the press:

NAME

ARREST DATE

ARREST TIME

OFFENCE

TIME IN CUSTODY

Person A

07/11/2022

08:08hrs

Conspiracy to commit public nuisance

877 min

Person B

07/11/2022

10:48hrs

Conspiracy to commit public nuisance

781 min

Person C

07/11/2022

11:00hrs

Conspiracy to commit public nuisance

623 min

Person D

08/11/2022

08:08hrs

Conspiracy to commit public nuisance

326 min

3.2 In order to achieve Objective A, the review team have addressed the specific issues as to whether or not the arrests were justified.

3.3 The power of arrest is principally governed by PACE 1984 and to be lawful, the arrest must be necessary by reference to statutory powers set out within PACE 1984. Code G provides additional rules and guidance on the use of the power of arrest.

3.4 Of particular relevance to this operation, it is important to observe the judgement laid out following O’Hara v Chief Constable of Royal Ulster Constabulary 1996 – an officer cannot exercise the power of arrest based on instruction from a superior officer. In order to satisfy the requirements under section 24 of PACE 1984, the superior officer must convey sufficient information in order for the arresting officer to develop reasonable.

3.5 The evidence in this case indicates officers were directed to arrest and did not develop sufficient grounds prior to exercising their power.

3.6 Having reviewed the evidence and the information available to the officers at the time there seems to be a disconnect as to how they arrived at the outcome they did. The interactions of officers suggest that arrest was the likely outcome regardless of the information obtained.

4. Training, planning and command

4.1 Hertfordshire Constabulary implemented a Public Order Public Safety (POPS) Command Structure to manage its response:

  • GOLD Commander – Superintendent A SILVER Commander – Chief Inspector A Bronze Commander – Inspector A
  • SILVER Commander Mentor – Chief Inspector B GOLD POPS Advisor – None documented
  • SILVER POPS Advisor – Constable A
  • BRONZE POPS Advisor – Not allocated

4.2 Superintendent A is both occupationally and operationally competent (26/08/2021) to perform the Gold function and the review team recognised her experience in the POPS arena.

4.3 The Silver Commander is occupationally competent (13/05/2022) to perform the Silver function.

4.4 The Silver Commander is not operationally competent and was therefore being mentored by Chief Inspector B (who achieved operational competence partway through this operation). It is noted that both Chief Inspectors were not co-located for the duration of the operation as

4.5 The Bronze Commander is both occupationally and operationally competent (17/01/2022) to perform the Bronze function.

4.6  The constabulary purposely selected its Command Team, seeking Commanders with experience, however, due to resource pressures this was not possible for all roles, resulting in some mentoring within the operation.

4.7 The six core principles listed with the Public Order APP are evident (some more than others) within the Gold, Silver and Bronze Plans.

4.8 The Gold Commander developed the Strategic Plan for the operation and specified a number of objectives in order to be successful.  These are further clarified by scenarios in which the Gold Commander classified would amount to acceptable, preferred, and unacceptable outcomes.

4.9 The Silver Plan was perceived to be generic in nature (accepting the author is working towards operational competence). For instance, the list of legislation was bland and there was no reference as to why it was applicable for this operation. No intervention policy or tactical parameter was set around arrests.

4.10 The Review Team were surprised to discover that no POPS Advisor was assigned to the Bronze Commander. The College of Policing (CoP) Approved Professional Practice (APP) for Public Order clearly states the decision and rationale for not using/deploying a POPS Advisor “should be documented as part of a Commander’s decision-making audit trail”.

4.11 The Review Team were not aware of the existence of the Bronze decision log and this may well be due to the fact that the Bronze Commander was solo ground assigned and did not afford himself the ability to document his decisions/actions.

4.12 The Review Team have had confirmation from Essex Police that POPS Advisors were deployed with each Commander throughout the corresponding operation in their Force area.

4.13 The Bronze Crime Plan was notably detailed and thorough, and the author ought to share their plan and circulate as best practice.

4.14 None of the original plans made specific mention of members of the Press or Media and what their role entails and what the response should be.

4.15 It is worthy of note, that prior to this review being requested, Commanders reflected on their actions which is documented in a lesson learned log.

5. Operational direction

5.1 Objective B seeks to address the direction to officers from the Command Team.

5.2 It is worthy of note, that regardless of the action taken, Hertfordshire Constabulary were swift and unified in their initial response to the JSO activity.

5.3 The perception of officers assigned to the operation was a desire to prevent disruptive protest activity as swiftly as possible. The direction from the command team, in particular Bronze, appears to be to effect rapid arrests for conspiracy to commit a public nuisance in order to actualise this.

5.4 This was partly associated with a clear expectation from Hertfordshire Constabulary that breaches of the law would be dealt with robustly and swiftly.

6. Training specific to press/media engagement

6.1 All officers engaged with public order operations (including level three and all tiers of Command) are required to watch and complete the CoP National Union of Journalists (NUJ) video which explains the rights of reporters and photographers during public order situations. There is a requirement to refresh this every three years.

6.2 Training records indicate that the Silver Commander and the Bronze Commander have completed the training and remain ‘in date’.

6.3 Of the four arresting officers, the below illustrates the training compliance:

OFFICER

TRAINING

ARRESTED

COMPLIANCE

PC B

Level 2

Person A

Not completed

PC C

Level 3

Person B

Not completed

PC D

Level 2

Person C

04/01/2021

PC E

Level 2

Person D

26/10/2022

6.4 This review has identified a need to provide officers with bespoke instructions detailing organisational expectations should they encounter a member of the press in order to resolve Objective C.

7. Wellbeing and welfare

7.1 Objective D within the Terms of Reference sought to assess the level of support provided to officers and staff following specific scrutiny.

7.2 Arresting officers have been spoken to by the Gold Commander and Chief Constable Charlie Hall to reassure them that the purpose of the review is not to apportion blame, but to capture learning.

7.3 Officers have been signposted and provided with a point of contact for the Police Federation.

7.4 No welfare issues have been identified and prior to the review being published, affected officers and staff should be forewarned.

8. Command measures

8.1 Following the arrests made on 08 November 2022, the Silver Commander revised the Tactical Plan in order to ensure that officers did not arrest journalists lawfully covering the JSO activity.

8.2 It is unknown how the revised plan was disseminated to other Commanders in order to highlight this revision.

8.3 It appears as though the additional safeguards imposed by the Silver Commander were not fully communicated to officers, but had they been, the Review Team felt they were sufficient.

9. Presence of the media

9.1 The JSO movement has gathered and continues to regularly feature in major news outlets as the non-violent direction action becomes increasingly more imaginative.

9.2 It was entirely foreseeable that journalists were going to be present at sites of activity with a view of reporting on the Therefore, the opportunity for Police Officers to encounter journalists was likely.

9.3 The importance of the role of the media is discussed below and unlawful interference undermines confidence in Police legitimacy.

9.4 In situations where the authorities conduct operations to preserve the public order, the media play a crucial role in providing information on the authorities handling of public demonstrations and the containment of The role of the media assumes particular importance in such contexts since their presence is a guarantee that the authorities can be held to account for their conduct including the methods used to control or disperse protestors or to preserve public order (Pentikainen v Finland 1989).

9.5 It was believed that officers had a lack of understanding as to the role of the media and how they operate.

9.6 The JSO activity spanned at least four other Police Forces, none of whom arrested members of the press.

10. Conclusion

10.1 Operational success is established by direct comparison against the Strategic Objectives and Outcomes contained within the Gold Plan.

10.2 The vast majority of the operation was successful.

10.3 There are three objectives which were not achieved, and one unacceptable outcome was realised:

  • Gold Strategic Objective 2 - Balance rights of those wishing to peacefully protest with those wishing to go about their lawful and legitimate business by adopting a proportionate policing response and exhibiting a ‘no surprises’ approach. We will seek to differentiate between such protest rights and unlawful criminal acts involving direct action.
  • Gold Strategic Objective 5 Rationale - Public confidence and policing legitimacy is crucial and nothing in this strategy should be considered as an intent to engage in overbearing, discriminatory or overly forceful police action which would threaten the public’s perception of that legitimacy of the policing operation.
  • Gold Strategic Objective 8 - Ensure communications maintain and where possible enhance public confidence in Hertfordshire Constabulary.
  • Gold Strategy - Unacceptable Outcome - Actions of police triggers wider tension or unrest.

10.4 All public order operations must consider the six core principles.

Policing style and tone

10.5 The Gold Commander has set a clear style and tone to be adopt by those engaged in this operation and is mindful of the potential impact on public perception. The Gold Strategy is impartial, fair and the content within is legally compliant.

10.6 The Silver Commander reiterates and further defines the style and tone within the Silver Plan (Tactical Options).

10.7 The Bronze Commanders Plan largely mirrors the Silver and Gold Plan although the intervention policy contradicts the feel of the operation.

Communication

10.8 Strategic Objective 3 provides the clarity around the briefing and dissemination of Strategic Objective 4 clearly states that there is to be a multi-agency response to the JSO activity. Strategic Objective 7 and 8 address the timely development and distribution of intelligence and communications to maintain public confidence.

10.9 The Silver Plan devolves specific responsibility to functional Commanders and indicates co-ordination amongst Category One responders.

10.10 The Bronze Plan purely refers to Gold and Silver Plans with no operational detail highlighting how they are to be achieved. The operational briefing provided indicates that arrest is the only option.

10.11 A meaningful briefing to officers highlighting the importance of differentiation prior to action would address the deficiency Essex Police who were experienced similar JSO activity at the same time articulated this to officers.

National decision model

10.12 The national decision model is the key framework for decision making. Each of the Command Plans make use of it and this is documented.

10.13 For this particular review it is important to note that scrutiny by the media plays an informal but influential part in the civilian oversight of the Police.

10.14 Hertfordshire Constabulary has established processes (shared with Eastern Region) for Commanders to document their plans, decisions, and the rationale behind The Review Team have been sighted on a Gold Strategy, Silver Plan and Bronze Plan, however only the Silver Commander has furnished a decision log and a revised plan.

10.15 The College of Policing issued the Code of Ethics under section 39A of the Police Act 1996 as amended by section124 of the Anti-Social Behaviour, Crime and Policing Act 2014.

10.16 The expectation is that every person working within Policing will adopt the Code of Ethics and its principles underpins decision making.

10.17 The Review Team found no evidence to indicate that the officers engaged with Operation Carious maliciously or deliberately behaved in a manner which fell below that expected of Police Officers.

Command

10.18 All except the Silver Commander were operationally competent to perform their role. The Silver Commander was assigned a mentor, but they were not co-located.

10.19 The Gold and Bronze Commander did not have a POPS Advisor and no record is made as to why this was the case.

Proportionate response

10.20 The planning at each Command level was based on information and intelligence.

10.21 Both the Gold and Silver Commander demonstrated consideration and application of relevant human rights principles.

10.22 Proportionality within this context means identifying the various options available and choosing the one which is least restrictive of a person’s rights in order to achieve a legitimate aim. It is important to balance the rights of the individual against the rights of the wider community. The action taken must be no more than is necessary to achieve that legitimate aim.

10.23 The Review Team believed that the Bronze Plan almost exclusively endorsed arrest as the only intervention available to This approach did not differentiate between people and did not consider the balance of rights (no distinction on activity).

10.24 Police powers were not used appropriately. When considering the rights, duties and responsibilities connected to the function of journalism, it is important to note the judgement resulting from Gsell v Switzerland. There is evidence to suggest the potential for the arrests to amount to an ‘unlawful interference’ with the individual’s freedom of expression under Article 10 ECHR.

10.25 Commanders are obliged to make professional judgements based on information and experience. The direction to arrest was given to officers and no alternative was considered or captured within a plan/log. The interactions of officers all suggest that arrest was the likely outcome regardless of the information obtained.

Capacity and capability

10.26 There were sufficient trained and accredited resources and equipment available to meet the public order commitment.

11. Recommendations

Recommendation 1

Hertfordshire Constabulary should consider selecting commanders with commensurate skills and experience when balanced against the nature of the operation.

Recommendation 2

Hertfordshire Constabulary should consider ensuring that mentors collate with commanders for the duration of the operation.

Recommendation 3

Hertfordshire Constabulary should consider ensuring that all commanders have access to Public Order Safety (POPS) advisors.

Recommendation 4

Hertfordshire Constabulary should consider affording commanders with the ability and capacity to maintain accurate decision logs.

Recommendation 5

Hertfordshire Constabulary should consider ensuring that all officers engaged with public order activity complete the NUJ package and identified learning is shared.

Review carried out by Chief Superintendent Jon Hutchinson from Cambridgeshire Constabulary.

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