FoI documents shed light on handling of Black Lives Matter protest

This prompted a complaint to the Information Commissioner’s Office.

As a result of its intervention, the PSNI has released some information but withheld some documents on the grounds that they were pertinent to an investigation by the Police Ombudsman’s office into a complaint of alleged differences in the way the PSNI handled the BLM protests compared to the Bobby Storey funeral in Belfast.

After contact from the ICO, the PSNI wrote to us: “Further to our last correspondence you will be aware the Information Commissioner’s Office (‘ICO’) has been in touch with PSNI about your complaint made under section 50 of the Freedom of Information Act 2000 (‘FOIA). In this we have exchanged correspondences with them to clarify the scope of your request. We have set out to the ICO further detail about the searches carried out for information held by PSNI and sought clarification from them as to their interpretation of your requests.

“We have reviewed our position in light of those correspondences and are now re-issuing a response to you in respect of your requests detailed below. In this we are releasing some information to you. The remainder of the information you have requested we consider attracts a series of exemptions. We have also detailed this to the ICO, but are issuing you with a revised response in respect of your full requests. We are also making clear we do not hold any information in regard to Part 3 of your request below and have set out further detail for you.

The original request was made in three parts.

Part 1 asked to receive copies of documentation in any form - including but not exclusively texts, emails, memos, minutes reports etc - that relate to the legislation enacted by the NI Executive on June 5 which preceded the Black Lives Matter rally at Guildhall Square in Derry on June 6. The time period for all aspects of this request is June 5 to June 14 and should include documentation that is internal to the PSNI but also to and from the PSNI.

Request 2

Such documentation that subsequently relates in any way to the actions of the PSNI that day in terms of issuing fines.

Request 3

It has been reported that police at the scene referred to acting on behalf of Unity of Purpose. I would like to receive copies of any documentation (as above) exchanged with this group or referring to it in any way.

Acknowledging that it was releasing some information on parts 1 and 2 but withholding other documentation, the PSNI said complaints about enforcement of the Regulations have also been monitored through the Office of the Police Ombudsman for Northern Ireland.

On December 22, 2020 the Ombudsman published a report, noted the PSNI, adding: “Since the publication of that report the Ombudsman has also publicly announced she has commenced an investigation into a complaint she has received from a member of the public who was involved in a ‘Black Lives Matter’ protest on the 6th June 2020. The complaint involves allegations of inconsistencies in the policing approach to engagement and enforcement at the Black Lives Matter protest compared to the funeral of Mr Bobby Storey. This investigation is live and still ongoing and PSNI has consulted with and taken into account the views of the Police Ombudsman’s Office as a result of your requests for that reason. We have made the ICO aware of this.”

On part 3, the PSNI response added: “PSNI have carried out searches including with our District police teams and can confirm PSNI does not hold any information in respect of this request. We apologise we did not make this clear. We can confirm that at District level PSNI carried out pre-engagement activity with various groups but it does not have any documentation exchanged with the Unity of Purpose Group and did not act on its behalf. We have informed the ICO of this in our correspondences to them.”

While significant information has been refused, the documentation released by the PSNI paints a picture of how late in the day new legislation was enacted, and highlights issues that arose as a result of the way in which laws were made here.

For instance, an email to Assistant Chief Constable Alan Todd on June 5, 2020, noted: “You will be aware that the Health Protection (Coronavirus, Restrictions) (Amendment No.3) Regulations (Northern Ireland 2020), which came into operation at 11pm on 19 May, enabled a person to participate in an outdoor gathering consisting of up to six people who are not members of the same household (Regulation 6A).

“It has been brought to my attention that unfortunately the consequential amendments to allow enforcement of Regulation 6A – to direct the gathering to disperse; to direct any person in the gathering to return to the place where they are living; or to remove any person in the gathering to the place where they are living, were not made. This may have implications for enforcement that occurred at any time from 11pm on 19 May. It is hoped to make the 5th set of amendment regulations today. Although the core amendments are intended to come into effect on Monday 8th June, the proposal is to include amendments on the enforcement of Regulation 6A that would commence this evening. I would hope to be able to confirm this with you later today.”

Although the sender’s name was redacted, a copy of the same email provided by Stormont shows it came from Nigel McMahon (Dept of Health).

A later email, sent at 4.41pm, was marked ‘Urgent’ and informed the ACC: “Alan, I can confirm that restriction amendment regulations No.5 were made this afternoon and the amendments to ‘fix’ the enforcement elements of Regulation 6A will commence at 11pm this evening. The remaining parts of the Regulations will commence at 11pm on Sunday 7th June. The Regulations will be published today on the Department’s website.”

ACC Todd replied at 5.10pm: “Thank you.......timely! Have a good weekend. ☺

@I@n”

On June 8, a memo was sent to police colleagues by Assistant Chief Constable Alan Todd saying: “Colleagues BLACK LIVES MATTER PROTESTS: As you will be aware, a number of protests were planned across Northern Ireland for this past weekend and whilst supportive of their right to protest, we had significant concerns about them in the current context of the COVID-19 pandemic. At the last minute and following engagement with officers, I am pleased that organisers cancelled events in Newry, Portadown and Omagh. However, two protests went ahead in Belfast and Derry/Londonderry with about 500 attendees at each. In the run-up to the weekend and since we have been engaged in media activity in place to ensure that our messaging reached the widest possible audience.

“The three main points I wanted to get across were that:

• In other times we would be both supporting and facilitating the attendees right to

protest in a peaceful and lawful manner,

• In these times, such gatherings are a risk to public health and in breach of the current Health Regulations and therefore unlawful

• At the present time, protesting needs to find other ways of being heard-think about this and act responsibly. I also pointed out the contradiction of protesting against the unnecessary and unjustifiable death of a person in the US which then risked the unnecessary and unjustifiable deaths of people in Northern Ireland who could contract the virus as a result. I believe that as a result of the steps we took, less people turned out to the protests.

“No arrests were made but 71 fines and Community Resolution Notices (CRNs) were handed out for breaches of the Regulations. A number of individuals will now be reported to the PPS. Thank you for your efforts in engaging, explain and encouraging members of the public in the first instance and only using enforcement as a last resort. I believe our response to the protests was entirely necessary, reasonable and proportionate. We will continue to approach any further planned protest events in a proportionate and measured way with a view to keeping people safe.”

On June 9, an email from someone whose name is redacted was circulated saying: “Please find attached a consolidated version of the Restrictions Regulations which is up to date as at 5 June 2020. I hope this is helpful. I suspect it will not stay like this for long!”

ACC Todd responded to this: “Thanks for this. Suspect I’ll be needing these!! Kind regards, Alan.”

Information released by Stormont shows a fascinating interplay between the Department of Health and the Justice department after the gap in enforcement of Covid legislation was found.. The Executive Office Secretariat asked DoJ for an update on ‘Action 35’, an action point for the Health and Justice ministers to liaise on the regulations in relation to fixed penalties, by June 11.

According to the Stormont documents released to the Journal, an email by Maura Campbell to a redacted source, on June 11, at 10.14am, said: “We just spoke and you asked me to set out my enquiry in an email. As I mentioned, I’ve made our (Justice) Minister’s special adviser, Claire Johnson aware that DoH colleagues advised PSNI on Friday afternoon of a gap in enforcement powers relating to Regulation 6A (gatherings of up to six people) which was rectified that evening.

“This has called into question the legality of enforcement action taken in respect of this Regulation from 11pm on May to 5 June. I would welcome PSNI’s assessment of the impact and significance of this gap. Does this mean that certain enforcement actions taken (e.g. CRNs, FPNs, prosecutions) will have to be rescinded or are PSNI able to rely on other existing policing powers (e.g. public order powers)? I would welcome an early response so that I can update Claire and our Minister. Maura.”

A follow-up email sent at 11.06am the following day was cc’d to ACC Todd and said: “The Minister is pressing on this. She is anxious to know what enforcement action was taken during this period that might now be called into question. She is also keen to know when DoH made PSNI aware of the gap – I’ve seen Nigel McMahon’s email of 5 June but was there any suggestion of potential problem prior to this? I’ll need to get back to her today with an update. Alan – I’m copying you in so that you’re aware of the Minister’s interest. Maura.”

An email sent at 11.46am was released to the paper but the names of sender and recipients were redacted; It said “I would be grateful for Legal Services view on the below – The legality of our enforcement powers prior to this gap being closed. XXXXX (s38 & 40). Please provide figures in relation to the breaches of Reg. 6A recorded from 11pm on 19th May to 5th June. Please note the tight timescales in relation to this matter.”

And at 12.37pm an email from the DoJ Spad asked: “RE: COVID-19 Action log - Response required by 4PM Friday 12 June. Have health not made any contact with us about this? I’m copying Peter and Maura also. CJ.”

Maura replied: “Not yet. I’ll call them. PSNI are telling me that no Fixed Penalty Notices (COV1s) were issued for breach of Reg. 6A during this timeframe, but I’m still trying to confirm with them that any actions taken were under existing powers.”

An earlier email to Maura at 12.18 - again redacted - confirmed: “Maura, Thankfully no Penalty Notices (COV1s) were issued for breach of Reg. 6 a during this timeframe (we had 2 CRNs but that is for us to account for) XXXXX (s38 & 40).”

At 12.51 she emailed: “That’s extremely helpful, thanks. I take it this means that enforcement action taken at City Hall, etc. was under other powers? Maura”.

A follow-up from Maura Campbell said: “Also, would be helpful to have confirmation that PSNI were unaware of the gap until Friday,” to which she got the response: “Maura, The City Hall protest was on the 6th so hopefully not an issue and I can confirm that we were unaware of the gap.”

At 2.15pm, Maura Campbell emailed Nigel McMahon: “Hi Nigel, Would it be possible to get a quick word with a view to closing off this action please? PSNI have confirmed no COVID1 FPNs were issued during the period in question. M.”

To which Nigel McMahon responded: “Maura, Interesting that you were asked for a response by 4pm or by 9 on Monday, when we were asked for a response by 12:30 today! We have responded saying Minister is awaiting first contact from your Minister. Can we just both go back again and say the meeting is no longer required? Can I assume that this relates to the period between the introduction of regulation 6A and the amendment to complete the enforcement powers?”

A redacted email to Maura Campbell at 15.07 said: “My recollection is that the first PSNI were made aware of any issue with enforcement under this provision was Nigel McMahon’s email to ACC Todd last Friday afternoon, which Alan forwarded to me. That issue was rectified last Friday night, so any enforcement beyond that would have been covered by the new provision. Good to see that there appears to be little impact in terms of actual enforcement in the previous period.”

The issue appears to have then been settled, as a communication from Maura Campbell noted: “ All, I’ve now spoken with Health colleagues and they said they’d been expecting an approach from us. (In fairness, the wording of the action below seemed to imply we would take the lead.) They were asked to provide an update by 12.30pm today so have replied to say their Minister was awaiting contact from ours. Officials hadn’t been asked to call me.

“They say that the gap that occurred in the PSNI’s enforcement powers occurred because a small team were working at pace. The error was also missed by the Departmental Solicitor’s Office and the Examiner of Statutory Rules. It was picked up by a DSO solicitor on Friday 5 June (the day PSNI and DoJ were notified) while they were working on the set of amendments to be made that day, so they took the opportunity to address it, the effect of which was to bring PSNI back to the position they thought they were already in regarding enforcement powers.

“As noted below, PSNI has confirmed that no Fixed Penalty Notices (COV1s) were issued for breach of Reg. 6A during the period when there was a gap in enforcement powers. There were 2 Community Resolution Notices (to which no fines are attached) issued which they are aware they will need to look at. They have confirmed they were unaware of the gap until Friday. I would suggest the following update is provided to the Executive Secretariat: ‘Following discussion at official level, it has been agreed a meeting is no longer required. It has also been confirmed that no fixed penalty notices were issued during the period concerned’.”

A redacted email to Justice Minister Naomi Long, forwarded this note and asked: “Minister, Maura has provided the following update for the action from the Executive meeting on 11 June. Are you content that I go back to TEO with the update? Thanks.”

To which Naomi Long responded: “Yes, thank you. Much appreciated. Naomi.”