No prosecutions are to be taken against Black Lives Matter demonstrators who participated in protests in Northern Ireland when strict coronavirus rules on public gatherings were in place.
The Public Prosecution Service said it has decided not to take action over 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.
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.
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.
“It also involved a careful analysis of the particular circumstances of these protests and the conduct of the individuals reported.
“The evidence received from police was subjected to an impartial and independent application of the Test for Prosecution, in line with the PPS Code for Prosecutors.
“The prosecution team was also assisted by advice received from independent senior counsel.
“It was concluded that, in respect of each of the 14 individuals reported, there was no reasonable prospect of conviction for any offence.
“This was on the basis that the evidence would allow the suspects to successfully raise the statutory defence of reasonable excuse. In these circumstances the Test for Prosecution was not met.”
Mr Hardy 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.
“We are working to implement the lessons learned from this period and are reaching out to those communities with whom we have lost trust.
“We have also established a Community Relations Taskforce to help us address community concerns and are reviewing our policies and practices.
“This work will take time but we remain determined to improve relationships and build confidence and trust in policing among all communities in Northern Ireland.
“We will now take time to consider the implications of the decision by the PPS and will engage with the relevant stakeholders in due course.”