Are there occasions when the police operate outside the law? Ian Mitchell argues that the circumstances surrounding the trials of those arrested at the G8 protest march in Edinburgh in July 2005 is one such case in point.

On Monday 5 July 2005 perhaps a thousand people marched through central Edinburgh to protest about the G8 summit which was taking place at that time at Gleneagles in Perthshire. The media referred to these people as “anarchists” and the protesters themselves called their march a Carnival for Full Employment.
About 60 people were arrested in the course of the march. They appeared in the Edinburgh Sheriff Court on a variety of charges – most of them breach of the peace – on Tuesday 6 July. The police closed the court on that day without, as they now admit, lawful authority. Since justice must not only be done but must also be seen to be done, this is a very grave matter.
As long ago as 1693 the Scottish Parliament passed an “Act anent Advising Criminal Processes with Open Doors”. As recently as 1998 the British Parliament incorporated the European Convention on Human Rights into British Law. Article 6(1) of the Convention states that ‘in the determination of … any criminal charge against him, everyone is entitled to a fair and public hearing.’ A closed court cannot provide a public hearing.
The principle of open justice is so fundamental to law that it is rarely mentioned in the academic literature, but there has been one occasion in modern times when it was severely tested. In 1971 several hundred Vietnam veterans appeared on the steps of the US Supreme Court building in Washington DC, brandishing toy machine guns and demanding that the court rule on the constitutionality of the war. The veterans’ actions were part of a larger campaign against the war and the corrupt administration of Richard Nixon.
The Chief Justice, Warren Burger, a Nixon appointee, ordered the steps cleared and the huge, 13-ton, bronze doors of the Court building closed, for the first time in history.
Every other Justice objected to Burger’s decision. Thurgood Marshall, a Johnson appointee who was the great-grandson of a slave, dictated a memo in which he called this decision an “overreaction”. The demonstrators were entirely peaceful and the Court was in no position to anticipate what they might do. Clearing the steps of non-violent demonstrators was unconstitutional, Marshall said. It discredited the whole Court.
When the Lothian and Borders Police closed the Edinburgh Sheriff Court, not only was there no violence outside, but there were not even any demonstrators!
I was there myself and saw Chambers Street empty except for perhaps a dozen uniformed police and two Special Branch operatives, conspicuous in their Monty Burton-style suits, who were ostentatiously cupping their hands over mobile phones and glancing out of the corners of their eyes. Apart from some media people and pedestrians going about their normal business, the street was clear. There was not an anarchist in sight.
Not only was there no violence outside the Court, there had been very little violence the day before which had not been provoked by the police themselves. I had been there too, cycling about the streets noting that most of the aggression came from batten-wielding officers in noddy suits from either the Metropolitan, Manchester or Yorkshire police forces.
I am not the only one to have remarked on this fact. Pictures in the press at the time make it quite clear, not only that the aggression came mainly from the London and north of England police, but also that many of them had their numbers concealed to prevent individual identification, another unlawful act. I saw some of their commanders lounging in huge black 4 x 4s in St Andrews Square while their colleagues clowned around, striking poses and taking souvenir photos of each other in front of the Royal Bank building. It was like an invading army celebrating victory over backward colonials. I came away sympathising with anyone arrested for opposing this demonstration of ruthless state power. Ugly, noisy, angry and unclean though many of the anarchists were, their behaviour was no more of a threat to public order than that presented by, for example, groups of drunken Hibs fans on an average Saturday afternoon on Easter Road. The local police make a reasonable fist of controlling them without the use of ostentatious violence.
The uncalled-for police aggression in Princes Street reminded me of my younger days in apartheid South Africa, or visits latterly to the Soviet Union. That was why I decided I would go to see how the people arrested were disposed of by the Scottish court system the next day.
I arrived in Chambers Street at about noon to find that three of the four gates to the Court were closed and only the small one at the right-hand side was open. I asked to be admitted and was told by one of the dozen or so officers standing guard that “the courts are closed to the public today”. I asked another officer the same question and he gave me the same answer. I asked on whose orders had the court been closed. The policeman said, rather uncertainly, “The Senior Clerk of the Edinburgh Sheriff Court”. I hung around over the road for a bit, amused by the antics of the Special Branch operatives, then left.
I subsequently learned that a Mr Martin Wallace and a group of fellow law students had done the same as I had, and been given the same answer three hours earlier. His group was told that they could not get into the court unless they were members of staff, members of the media or legal practitioners. Mr Wallace has used his experience as the point of departure for a full article on the law surrounding this issue in the Juridical Review (‘With Open Doors…?’ The Police and Public Access to the Courts). Clearly the police had been ordered to give this answer to everyone.
I cycled back to Leith and decided that I would phone the “Senior Clerk of the Edinburgh Sheriff Court”, David Shand. A courteous and helpful man, he explained the position from the point of view of the court authorities, to whom the police are at all times subordinate.
“The position,” Shand said, “is that the courts were not closed to the public and if you were told that by a police officer then he was exceeding his authority. Any restrictions that were in place were sanctioned by the Sheriff Principal. The only restriction I was aware of with the Public Order Unit at the front door was identification. If people had identification they were to be allowed into the court and it was business as usual. Justice must be seen to be done.”
I asked for the background and Shand said, “Basically the case law on the subject is Ralston v HMA which says that the courts can be closed by the Sheriff Principal. The position today was that the Sheriff Principal had been contacted by the Chief Constable to say that if any trouble should develop they would want to seal off the court. That is perfectly understandable. But there was no trouble and there were a number of non-G8 courts operating. I apologise that you never had access.”
Aghast at this, I decided to write to the Chief Constable to ask which of his officers had ordered the court to be closed in contravention of both the Sheriff Principal’s directions and three centuries of Scottish legal tradition. It took me a year to get an answer.
During that year, I asked a judge for an opinion on the case.
“The idea that the police would take it upon themselves to say that the court was closed when they haven’t got the authority of the court to do that is (a) news to me and (b) quite horrifying,” the judge said. “We do close courts sometimes, but only in very exceptional circumstances, like a rape case when we have the complainer in the witness box. Even then, you would hear Counsel on both sides first, and of course you are closing only one court, not the whole building. Judges take the view very strongly that the courts should be open and that the police have got no authority to interfere, none whatsoever.”
I subsequently asked another judge, an ex-Lord Advocate, whether he thought, considering all the facts, that the police had acted unlawfully.
“I have no doubt about that,” he said. “The officers outside the court were acting outside their authority. The only excuse for closing the court would be something like a near riot outside the building, and as soon as that disappeared, they had no grounds for it. Therefore the police officer commanding the situation acted outwith his authority, definitely.”
Finally I asked in what situation he could envisage the police breaking the law with such evident determination. He explained to me about the role of the Metropolitan Police in Scotland.
“They have no strictly legal right to operate as police constables in Scotland, but of course they get the OK from the local Chief Constable and in effect are seconded into the Scottish police force. But they are a law unto themselves. They come in force with guns and things. There is no doubt that when they arrive, the Metropolitan Police take over, completely.”
I said I could understand that for royal protection duties and so on, but why the G8? “The Metropolitan police are responsible for diplomatic protection. That would have been their excuse for coming here en bloc: all the heads of state at Gleneagles. Technically they can’t do that, so the technical justification is that the Chief Constable agrees. Without his agreement it couldn’t be done. But if he didn’t agree, the Chief Constable would disappear or something. They would go ahead, all right.”


In part II Ian Mitchell will describe how he managed to trace the officer responsible for closing the court and describe the police response. See the July issue.