“I can arrest you now”

The loss of liberty and freedoms should never be taken lightly. There are very good reasons why public officials cannot go around arresting people and detaining them without good reason.

At the comedic end Not The Nine O’Clock News and Constable Savage’s made-up charges like “walking in a loud shirt in a built up area…” poke fun but in reality the experience is something entirely different.

Arrest and loss of liberty – when the state removes freedom of its citizens – is no laughing matter. For this reason powers are limited to those with recognised authority. The Human Rights Act recognises this and protects the right to liberty. Article five makes it clear in the second sentence:

“No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law“

And before we sit back, relax and think the state will apply the law correctly and with diligence we should consider a few salient points:

• Successive governments have cut back legal aid so a tiny minority qualify
• The courts service has been underfunded for a very long time
• Criminal barristers have either left the profession or are (at time of writing) on strike

The bottom line; anyone thinking the system and the state will magically function in their favour and work hard to avoid committing a miscarriage of justice is deluded and needs to sit up and smell the coffee. Anyone sucked into this system must be prepared to pay out of their own pocket for a legal defence and wait years for justice to be served.

And don’t think for one moment your legal costs if acquitted will be met in full. The government has capped them and you will be out of pocket for any mistake made.

Enter this system at your peril and expect to spend your own money even if the state screws up.

Not convinced? Have a read of the Secret Barrister’s work at exposing just how well [sic] the legal system is running.

Don’t think it will apply to you?

It won’t…until it does when a Training Area Safety Marshall (TSM) decides “riding a bicycle off the main track” fits the profile of a criminal. Without legal certainty who knows what stunt DIO will pull next?

We should expect anyone using the words “I can arrest you now” is using a procedure prescribed by law.

Which, as we will see, is not how Defence Infrastructure Omnishambles choose to operate or bother to educate their TSMs.

Background

Way back in May 2021 a TSM – we are not obliged to anonymise public facing officials but for now lets call him Mr A – made the threat of arrest.

A smartly dressed Mr A thought anyone in uniform can enforce the Aldershot Byelaws. Section 7 of the Aldershot byelaws makes it clear who is empowered (and wearing a uniform isn’t listed) but compared to a threat of arrest it’s a minor faux pas.

When pressed Mr A confirmed no one – certainly no one legally qualified – had offered him any guidance on exactly what powers a TSM might hold. Like us, he “…had just read the byelaws. Since no one has told me.”.

Nevertheless Mr A felt empowered to assert he held powers beyond a mere civilian.

Let’s pause for a moment and consider; DIO are sending TSMs into the community without legal advice.

Really? No training? No legal advice?

Mr A was confident in his interpretation to threaten arrest. You can read the entire transcript of the conversation in the link below.

Our favourite part is where Mr A thinks it reasonable to close 340 acres of access because illiterate people are unable to read a sign warning of a steep drop. Even when the sign has a picture visually indicating what would happen to those who cannot read – falling in a hole. A big hole that is difficult to miss. On account of it being…obvious. We digress…

So the burning questions:

Does a TSM hold the powers of arrest?

Is Section 7 of the Aldershot byelaws still valid?

You would expect senior DIO staff are aware of current legislation relating to powers of arrest so that TSMs would receive appropriate training on their legal powers before letting them loose to threaten arrest.

Instead it took public fundraising to pay for qualified legal advice to spell out exactly what the law says. But before we dig deeper into the powers (or not) of arrest a TSM holds, lets pause for a moment and see how DIO treat another part of the laws of the land – copyright.

Photos? Help Yourself!

The skill and diligent approach by DIO when considering “public engagement and community relations” [sic] is fully expressed at their decision to close an area of Ash Ranges. Shambolic would be a fair summary.

We won’t dwell on how DIO decided to pull off a stunt, blaming everything from, in succession, COVID to vandalism (only those with corporate knowledge could understand costs) or those pesky holes in the ground ready to trap the illiterate, but we will dip briefly into how DIO staff treat the local community photographers.

DIO published a Powerpoint presentation “explaining” why the ranges really must be closed.

Included were some really nice photos showing vandalism. Damaged fences and a broken gates are serious but it was a shame the damage was about a mile away from the closed area and the gate had been hit by an army truck but never mind, the locals had to be excluded and why let facts get in the way of the narrative.

Also included was a photo taken by a member of the public. It had been shared on social medial and DIO had helped themselves to it. DIO published the photo to suit their agenda.

The photographer is vehemently opposed to the closure of the ranges. To see their photo being exploited by DIO bolstering their lies was galling to put it mildly.

Just like R.E.M, The Rolling Stones, Adele and Elton John object to Donald Trump using their music at his rallies.

Now it may come as a shocker, but copyright law means the photographer is the sole individual who can decide what their photo is used for and it’s an exclusive right. But that didn’t stop DIO.

They helped themselves and published it anyway.

So, DIO staff had don’t think the laws of the land apply to them, went ahead anyway and breached the rights of the photographer.

Such is the contempt and lack of basic knowledge of how the laws work.

Legal Advice

Friends and fellow campaigners Save Our Spaces wanted to know how the laws of the land applied to DIO and if the powers of arrest were valid. The local community backed a fundraiser and sought legal advice – which is not cheap.

With respect to the powers of arrest held by a TSM as empowered by the Aldershot byelaws the legal counsel’s view was crystal clear:

Schedule 7 para 38 of the Serious Organised Crime and Police Act 2005 removed the powers of arrest [For a TSM].

MoD police and serving officers or NCOs remain empowered to arrest – but not the TSMs.

So a TSM threatening arrest under the Aldershot byelaws is – and we will not labour the point – working beyond their powers:

Mr A – a holder of public office – was asserting powers that have removed from the Aldershot and District Byelaws.

Instead of sourcing qualified legal advice DIO let the TSM read and interpret the laws how they saw fit.

Far better to continue to threaten arrest and scare the recreational users off the lands – it suits DIO narrative- even if the powers were defunct in 2005.

The Ombudsman Speaks

You may think a public office holder claiming to hold powers that don’t exist is ripe for a complaint. It hardly fits into the Standards in Public Life and even better Mr A was in full agreement. From the transcript:

“Yeah, I agree that we should be held to account, whatever because we are a public office.”

There was an overlap between the Ombudsman starting to look at the case and the arrival of legal advice. Initially the Ombudsman found nothing wrong. Then, when we started to challenge this the Ombudsman pressed for the legal reasoning before reconsidering:

“…if you can explain exactly what part of the 2005 Act revoked these powers, we will be happy to look again.”

Note how at every turn it’s down to the community or individuals to prove the state is wrong?

So we shared legal counsel’s view.

Even though it was 30 days beyond the Ombudsman’s time limit they pressed for it – double standards when compared to other evidence we turned up in other complaints.

In the end we were going absolutely nowhere and were given this reason:

“I am afraid this has been declined. This is because the related injustice does not meet our threshold for review, which requires far more serious injustice.”

Yes folks, you read it correctly. A holder of public office can go around claiming to hold powers that no longer exist.

Compliance with Article 5 of the HRA is set aside. The Ombudsman goes on to explain:

“While I am sure you experienced annoyance at the conversation, this would not meet our threshold for review.”

TAG really have no more to add, apart from a reminder how a false arrest and entry into the criminal justice system will be more than just “annoyance”.

Clearly the Ombudsman has a different set of values but being threatened with arrest by someone who has no such power should have no place in a civil, liberal and open democracy. Maybe TSM really stands for Training Stazi Marshal?

TAG are left wondering what TSM behaviour or indeed how low DIO standards have to drop before anyone really cares?

Summary

We do have some sympathy with Mr A. Trying to sidestep responsibility and blaming others further up the chain with I’m just doing my job won’t work as it fails to meet Principles of Public Life (1.7 – Leadership). Anyone trying the blame game and pinning it on the boss isn’t really hitting the standards.

But in this case TAG see the incident as a symptom of ineffective leadership. The broad failure to train staff reveals the shambolic nature of higher management and casuality towards a responsibility to deliver an effective, legally compliant minimum level of service.

In the profit and loss world of commercial survival the directors of a company would be failing to discharge their duties…shareholders see profits slip. DIO are under no such pressure – when money arrives, budgets are allocated and DIO spend cash like sailors on shore leave and the matter of trained and qualified staff is of little concern. Except it’s our money being spent and DIO are wasting it whilst simultaneously failing to deliver a service we should expect. TAG firmly believe the buck stops firmly on the desks of Lt Col Bishop and Mark Ludlow.

Between TAG and Save Our Spaces we have compiled a DIO statement fact checking sheet. Its running at 56 statements – not including the absolute gem “I can arrest you now”. There are quotes from a wide range of DIO staff all guilty of making things up and it’s a target rich environment when it comes to demonstrating a wide range of mendacious attitudes, opinions and ego based “policy”.

We will be dipping into it over the next few months, revealing what was said by whom and picking it apart for validity.

The contempt for legal compliance takes things to an unbelievable level of omnishambles as DIO staff have demonstrated a less than compliant attitude to the laws of the land. From helping themselves to copyright protected material and publishing it to suit their own agenda to letting unqualified or trained staff interpret and threaten the law.

Never mind the Human Rights Act works to prevent wrongful arrest, or showing contempt to the local community and publishing an image to suit a decision taken without good grounding or evidence. If it assists Disruptive Intransigent Omnishambles to achieve the goal of restricting access and disrupting causal recreational access then its all fair game.

But it gets worse. Consider this;

DIO are charged with authoring the replacement byelaws. If DIO cannot follow the basics and get the current laws right what level of competence can we expect with the new set?

When DIO refuses to respect the local community and steal an image, or threaten arrest when there is no procedure prescribed by law, should we really expect anything less than draconian recreational restrictions?

TAG firmly believe DIO should cease publishing intellectually insulting adverts, stop deleting records and drop the idea of trying bad faith engagement. Training their staff in the law would be another positive step and installing the gates at Long Valley as promised by MP Ranil Jayawardena would undo some of the damage DIO have inflicted in community relations.

What is well overdue and absolutely required is a move towards rational, evidence based policy that has both a sense of purpose and – above all – proportionality.

TAG can and will support that.