26/02/2021

TCHRD condemns detention and intimidation of peaceful protesters in UK

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The Tibetan Centre for Human Rights and Democracy (TCHRD) is appalled and disheartened that the London Metropolitan Police detained three peaceful protesters – a Chinese Tiananmen Massacre survivor and two Tibetan women – and searched their homes during the visit of Chinese president Xi Jinping to UK.

On 21 October 2015, London police dragged Dr. Shao Jiang from the street, charged him with “conspiracy to commit threatening behaviour,” and seized two computers, an iPad, and a thumb drive from his house. This was a stark reminder of how much Dr. Jiang had endured while calling for democracy in China. It also demonstrated how far the United Kingdom (UK) had moved from its values.

Dr. Shao Jiang held pieces of paper calling for democracy in China in front of traffic along Xi Jinping’s motorcade route. Dr. Jiang was actively involved in student movements for years before the Tiananmen Square Massacre on 4 June 1989. The night before the massacre, Shao Jiang saw killings on West Chang’an Avenue, which leads to Tiananmen Square, and ran back to warn protest leaders. He was among the last people to leave Tiananmen Square before the tanks rolled in. Dr. Jiang was imprisoned for 18 months from 1989 to 1991, kept in an overcrowded cell, and interrogated for up to 16 hours a day. In 1997 he left the People’s Republic of China and eventually received UK citizenship and a PhD. His protest in London alluded to the Tank Man, who stood in front of a line of tanks on Chang’an Avenue on 4 June 1989. As an activist, academic, and author, Dr. Jiang has been committed to giving Chinese citizens a voice when their government tries to silence them by denying them human rights and democracy.

By dragging Dr. Shao Jiang from the street, arresting him, charging him with a crime, searching his house, and seizing electronics, the UK and the Metropolitan police abandoned a centuries old commitment not to abandon their values to increase trade with China. In 1792, the first English ambassador refused to kowtow to the Chinese emperor even if it would harm England’s ability to trade with China. After his visit produced nothing but empty compliments the ambassador left. In 1817, England’s second ambassador to China also refused to kowtow before the emperor and was immediately sent back to England.

During Xi Jinping’s first state visit to the United Kingdom, Prime Minister David Cameron abandoned the tradition of not kowtowing, either literally or figuratively, to the Chinese to benefit trade. The People’s Republic of China’s human rights record was not discussed. Xi Jinping became the first non-democratic leader to address both house of Parliament while his crackdown on civil society in the PRC continues. On the streets, the police and Chinese security officials harassed human rights protesters.

Dr. Shao Jiang wearing a Tibetan flag and holding protest banners during the protest in London (Photo: Epoch Times)
Dr. Shao Jiang wearing a Tibetan flag and holding protest banners during the protest in London (Photo: Epoch Times)

Dr. Shao Jiang’s protest was an act of civil disobedience and if the police had detained him for breach of peace their conduct would have been lawful. Instead, the UK joined Denmark by abusing the legal system to stifle protests during Chinese state visits. The European Convention for Human Rights and rulings from the European Court of Human Rights allow for the detention of people who breach the peace to prevent further breaches of the peace. A breach of the peace includes creating an obstruction during a non-violent protest.

When the police charged Shao Jiang and two Tibetan women, Sonam Choden and Jamphel Lhamo , who attempted to wave Tibetan flags at Xi Jinping’s motorcade, with conspiracy to commit threatening behaviour and searched all three people’s houses, they exceeded their legal authority.

A conspiracy requires that two or more people agree to carry out a criminal act. The police accused Dr. Shao Jiang and the Tibetan protesters of agreeing to violate the Public Order Act of 1986. The Metropolitan Police confirmed that the three had been charged but did not provide any information about why they suspected a conspiracy. The lawyer, Bill Nash, for Sonam Choeden and Jamphel Lhamo said that in 40 years as a lawyer he had never heard of peaceful protesters being accused on conspiring to commit threatening behaviour.

The Public Order Act of 1986 was passed after a series of protests and riots in the United Kingdom in the early 1980s. The Public Order Act prohibits the use of “threatening, abusive, or insulting words or disorderly behaviour…within the hearing or sight of a person likely to be caused harassment, alarm or distress.” A person cannot be convicted of violating the Public Order Act if there was no reason to believe somebody within sight would be caused harassment, alarm or distress. According to the conditions for Dr. Shao Jiang’s bail, which he posted on his Twitter account, the victim of his protest was Chinese President Xi Jinping.

The naming of Xi Jinping as a victim and charging Dr. Shao Jiang and the two Tibetan women with threatening Xi Jinping demonstrates how much the UK compromised its values to accommodate Xi Jinping. There is no reason to believe that, even if Shao Jiang had blocked Xi Jinping’s motorcade while holding signs calling for democracy in China while Sonam Choden and Jamphel Lhamo waved the Tibetan flag, Xi Jinping could have felt threatened. Xi Jinping was travelling as part of an eight-car motorcade with a police escort. Additionally, claiming that Dr. Shao Jiang’s political statements could have caused Xi Jinping alarm or distress ignores Dr. Shao Jiang’s right to freedom of expression, protected by, among other things, Article 10 of the European Convention on Human Rights. Political expression is given the most protection by the European Court of Human Rights, which interprets and applies the Convention.

Even though Shao Jiang, Sonam Choden and Jamphel Lhamo are unlikely to be convicted of conspiring to commit threatening behaviour, substantial damage has already been done. While the three were in detention, police searched their houses. Presumably, the police were able to obtain search warrants to search for evidence of the alleged conspiracy. In the case of Dr. Shao Jiang, the search happened when his wife Johanna Zhang was bringing Dr. Jiang fresh clothes. She came home to find that two computers, an iPad and a USB stick had been replaced by a warrant.

Article 8 of the European Convention on Human Rights protects an individual’s right to privacy. A person’s right to privacy is violated if a search unjustifiably interferes with one’s reasonable expectation of privacy. In Peev v. Bulgaria, (64209/01, 26 July 2007), the European Court of Human Rights held that the right to privacy includes a desk drawer at work containing personal photographs and information. The Court held that an interference is justified only if it is, among other things, necessary in a democratic society. To be necessary in a democratic society it must be proportionate to the legitimate aim pursued. In Buck v. Germany (41604/98, 28 April 2005), the Court held that the search of a person’s business and home to determine who was legally responsible for a speeding ticket. Both the person’s business and home were protected by the right to privacy. The Court determined that search was unnecessary to determine responsibility for the speeding ticket and the court order allowing the search was too broad because it was not limited to what was indispensable for the criminal case. The Court also emphasised that the search was to determine who was responsible for a minor fine. The Court concluded that the search was not proportionate to the punishment of a traffic offense and therefore, not justified.

One of the two Tibetan protesters, Sonam Choden, during the protest (Photo: Tibetan Community in UK)
One of the two Tibetan protesters, Sonam Choden, during the protest (Photo: Tibetan Community in UK)

There are two searches involved in Dr. Shao Jiang’s case. First, is the search of his house to find the electronics. The second is the ongoing search of the electronics. Both of these searches also involve Johanna Zhang’s right to privacy because it was also her house and the police may have taken some of her electronics. The right to privacy included both Dr. Shao Jiang’s home and electronics. Similar to the desk drawer in Peev v. Bulgaria, the laptops, iPad and thumb drive all are likely to contain personal information and photos. As a result, Dr. Jiang has a reasonable expectation of privacy over both the house and his electronics.

To justify the intrusion into Shao Jiang the search must be limited and proportionate to the criminal investigation. The maximum penalty for violating the Public Order Act of 1986 is £1,000 (US$1,530, INR 99,612). Because Dr. Shao Jiang is charged with conspiracy, the evidence will necessarily involve communications agreeing to threaten Xi Jinping. It appears that the police seized all electronics, including a thumb drive, rather than limiting their search to communication devices. There is no information yet about whether any of the electronics have been returned. The taking, for multiple days, of electronics, which will include personal information, to attempt to find evidence justifying, at most, a £1,000 fine is disproportionate. Therefore, the intrusion into Shao Jiang’s privacy is unjustified and his right to privacy was violated.

The underlying question behind the search is why the police would suspect a conspiracy. Without any information coming from the police, the arrest, detention, criminal charges, and search of Shao Jiang’s house and electronics have crossed the line from legality to an attempt at intimidation. Johanna Zhang, Shao Jiang’s wife, is familiar with similar tactics when they were still living in the PRC. When Johanna Zhang heard her husband had been arrested then learned that her house had been searched, she felt like she was back in China. Neither Johanna Zhang nor Shao Jiang is likely to yield to threats of groundless criminal prosecutions or unlawful intrusions of their privacy. Unlike the UK, they are still unwilling to kowtow to the Chinese government.