I was at the march against antiSemitism in London on Sunday, but did not witness the arrest of Tommy Robinson. I’m thankful for that because I wouldn’t have known how to react in my capacity as head of the Free Speech Union. Whether the Met was right to arrest him (and subsequently charge him) requires careful thought and the fact that the answer isn’t obvious makes me sympathise with the operational commander who had to make a decision.

Robinson is far from being an anti-Semite but he and his followers can appear menacing

My gut says it was an abuse of police powers. Section 35 of the Anti-social Behaviour, Crime and Policing Act 2014 empowers the police to order someone to leave an area if they have reasonable grounds to suspect that the behaviour of the person has contributed to, or is likely to contribute to, people in the locality feeling harassed, alarmed or distressed. The organisers of Sunday’s march – the Campaign Against Antisemitism – had made it clear in advance that Robinson wasn’t welcome, so it’s safe to assume that they at any rate felt alarmed when he showed up. The police say they only arrested him after he repeatedly refused to go quietly, and failing to comply with a s.35 dispersal request is an offence.

But do the organisers of a public protest have a right to stipulate in advance who cannot attend and expect the police to remove them if they do? Section 36 of the same Act says that when deciding whether to issue such a directive, the police must have ‘particular regard to the rights of freedom of expression and freedom of assembly’ as set out in Articles 10 and 11 of the European Convention on Human Rights. What if the organisers had said they didn’t want the journalist Yasmin Alibhai-Brown there because she once described Israel as ‘more wicked and dangerous than Hamas’? I doubt the police would have arrested her. Indeed, the heavy-handed treatment of Robinson, who’s a supporter of Israel, in contrast to the lenience shown by the Met towards those on the other side, gives an impression of double standards.

To add to the case for the defence, Robinson maintains he was there in his capacity as a journalist for a news publishing site called Urban Scoop and was carrying out a paid assignment. Section 36 says a constable may not give a direction under s.35 if the person is ‘required to attend for the purposes of the person’s employment, or a contract of services to which the person is a party’.

That all seems pretty open and shut, but on closer inspection it’s more complicated. To begin with, I think there are circumstances in which issuing a dispersal notice under s.35 is warranted, e.g. if pro-Palestinian activists are protesting outside a synagogue. Was it justified in this case? Robinson is far from being an anti-Semite, but he and his followers can appear menacing and it was his intention on Sunday to interview some of the other marchers on film. It’s not unreasonable to assume that some of the people he approached, accompanied by a cameraman, would have felt distressed at the prospect of being questioned by him. The fact that Met commanders have instructed their officers to turn a blind eye when faced with pro-Palestinian protestors who are causing harassment, alarm or distress does not mean the Met was wrong to arrest Robinson.

Did the police issue the directive without showing ‘particular regard’ to his Article 10 and 11 rights? I suspect his defence lawyers won’t get very far if they make that argument. ‘Particular regard’ isn’t a burdensome legal obligation. To satisfy it, all the police need to do is carefully consider the Article 10 and 11 rights of a person before telling them to disperse; they aren’t required to prioritise those rights over others. In any event, the prosecution will argue that he wasn’t there to exercise either of those rights in good faith, but had his own agenda.

Finally, what about the fact that Robinson claims to have been there in a journalistic capacity? That, apparently, is the hill on which he intends to mount his defence. But the difficulty is that Urban Scoop lacks credibility. It has published only eight articles in the past year, and none in the past two months. It has produced several videos, but these all seem to feature Robinson interviewing people, suggesting it is a vehicle to promote him and his views rather than something the court would recognise as journalism. And if Robinson effectively controls Urban Scoop, the fact that he was being paid to attend the march, i.e., paying himself, isn’t a watertight defence.

Nevertheless, I think my gut reaction was right: the Met should not have arrested him. Extending a good deal of latitude to people attending protests is what we should expect.