Black Lives Matter protesters have hailed as vindication a decision not to prosecute them for participating in demonstrations in Northern Ireland when strict coronavirus rules on public gatherings were in place.
The Public Prosecution Service announced on Wednesday that no action would be taken against 14 suspects reported to it for potential offences under Stormont’s Covid-19 regulations.
The decisions relate to three protests that occurred last summer – two in Belfast and one in Londonderry.
Officials concluded that the test for prosecution was not met because the suspects would have been able to successfully argue a defence of reasonable excuse. The 14 people reported to the PPS for potential prosecution included a mix of organisers, speakers and other attendees.
Reacting to the PPS decision, demonstrator Cuthbert Tura Arutura said: “Today’s decision vindicates us.”
He added: “What today represents for the Black Lives Matter movement is that we were right all along. And the way we were treated by the politicians, the way we were treated by the police wasn’t fair, it was discriminatory. We were treated differently from all other settled communities and what today’s ruling by the PPS is basically saying is we were right all along. And this hostile environment towards people of colour has to stop.”
Three of the suspects were reported to the PPS in connection with a protest held outside Belfast City Hall on June 3, seven in connection with a protest held at nearby Custom House Square on June 6, with a further suspect reported in connection with both demonstrations.
Three other suspects were reported in connection with a protest held in Guildhall Square in Derry on June 6.
Three of the 14 suspects were challenging a Fixed Penalty Notice (FPN) issued by the PSNI in relation to their participation.
Protester Sipho Sibanda, who attended the Custom House Square demonstration, returned to the scene on Wednesday. She described the events of last year when police intervened as a “cold day in hell”.
“A year later, a whole year later, it’s a nice bright day and it’s full of hope it’s packed with hope,” she said.
“And it feels like a load of bad energy that’s been lifted off my shoulders.
“It traumatised me and it traumatised my children. And I’ll be very happy today to actually have a new discussion with them. And just show them the letter (from the PPS) to say, I’m finally free, you know, I can continue to demonstrate and talk about things that are important for their future, not just for me, but their future.”
Solicitor Darragh Mackin, who represented several of the protesters, said PSNI chief constable Simon Byrne should apologise individually to all 14 people who were informed they will not be prosecuted.
“Today is a decision that vindicates not only our clients, but the right to protest more generally” said the Phoenix Law solicitor.
“I think it’s incumbent upon the Chief Constable to immediately apologise to each individual who’s been put through almost a year of torment for simply exercising their very, very basic fundamental right to protest.
“As we’ve said all along, they never should have been fined, nobody should have been interviewed and today is a vindication of that position.”
The reasonable excuse defence could have relied on rights of freedom of expression and freedom of peaceful assembly contained within the European Convention of Human Rights.
The PPS said the fact that the protests related to a matter of important social concerns, that they were peaceful and organised in a manner that sought to minimise transmission of the virus were also factors in the decision not to prosecute.
Prosecutors said there was also a lack of legal clarity in the Stormont regulations as to whether such protests were unlawful.
They said the rules did not include any definition of a “gathering” or what constituted “outdoor activity”.
At that point, there was also an absence of any provisions dealing specifically with gathering for the purposes of protest.
The PPS pointed to a “tension within the provisions” because they allowed for unrestricted numbers to gather for the purpose of an outdoor film, live concert or theatre performance.
Prosecutors said the reasonable excuses specified within the regulations were non-exhaustive.
They added that another factor was issues related to the “proportionality and consistency” of the policing approach to different protests.
They highlighted an investigation by the Police Ombudsman for Northern Ireland which found that police treated Black Lives Matter protesters differently from those who gathered at Belfast City Hall last summer for a Protect Our Statues protest.
The watchdog said concerns that the police’s handling of the Black Lives Matter protests had been discriminatory had been justified.
Explaining the non-prosecution decisions, PPS 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.
He 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.”
Responding to the PPS decision, PSNI Deputy Chief Constable Mark Hamilton said it is clear that the police’s handling of the events “unintentionally damaged the confidence and trust of the black, Asian and minority ethnic community”.
“The Chief Constable (Simon Byrne) has apologised for the anger, upset and frustration caused by our policing operation, and I would like to repeat that apology today,” said Mr Hamilton.
“It is now over a year since the murder of George Floyd and the worldwide protests that followed, but we are still conscious of the deep hurt felt by members of the black, Asian and minority ethnic community.
“The PPS decision underlines yet again the difficulties we faced attempting to police during this period.
“Against the backdrop of an unprecedented health crisis and rapidly-changing, ambiguous legislation, our objective has always been to help slow the spread of the virus to keep people safe.
“Balancing this against our obligation to safeguard other important rights – such as that to peacefully protest – has not been easy or comfortable. We have not always got that balance right.”