Kettling: Is it Legal?

I haven’t yet formulated all of my thoughts about last week’s G20 protests (as I’ve been too busy at work… I am such a bad communist) but a barrister friend of mine, J Bide-Thomas, wrote an interesting piece on the legality of kettling that some may find useful:

“The short answer is that kettling is legal.

The recent decision of the Judicial Committee of the House of Lords in the case of Austin and another v Commissioner of Police of the Metropolis [2009] UKHL 5 considered the case of two persons that were contained by the police on 1st May 2001 in an area containing approximately 3,000 other people for a period of 7 hours. The principal question for the Court to decide was whether or not, on the facts found by the judge at first instance (High Court), there was a breach of article 5 of the European Convention on Human Rights, the relevant part of which is:

Article 5(1)

12. Article 5(1) of the Convention provides:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

This article provides that nobody shall be deprived of their liberty except where the article permits. In the instant case, the Court examined the wording of both article 5 and also the European Court of Human Rights’ jurisprudence on similar cases. The House of Lords came to the conclusion that none of the previous cases were terribly similar. Note that the House of Lords was not asked to look at the facts as found by the judge in the High Court. Some of these findings seem to me to be reasonable and others are absurd. They include:

‘The cordon was imposed purely for crowd control purposes, to protect people and property from injury;

The cordon was necessary as many of the demonstrators were bent on violence and impeding the police, and its imposition was in no way attributable to policing failures;

The purpose and reason for imposing the cordon were at all times plain to those constrained within it; (Really?)

The cordon lasted for as short a time as possible; during its imposition, the police attempted to raise it on a number of occasions, but decided that it was impractical;

Those who were not demonstrators, or were seriously affected by being confined, were promptly permitted to leave; (Untrue)

The appellant knew in advance that many of the demonstrators intended to cause violence, and that the police were concerned about this. (irrelevant)

The House of Lords based their judgment on those facts. They compared the situation at a protest with football matches, the closure of a carriageway following an accident and forcing people away from a location where there is a gunman. They came to the conclusion that:

1. A pragmatic approach was required in relation to article 5 rights. It was necessary to balance the rights of individuals against the important objectives of protecting people from injury and property from damage. The strict wording of article 5 suggests that it had to be necessary to stop the detained person from committing crime. A pragmatic approach was needed in a public order situation. People could be kettled to prevent disorder by other people contained within the kettle. It was not possible to distinguish between the peaceful and the violent in such a situation.

2. The nature of the Police actions on the 1st May 2001 did not amount to a breach of the article 5 rights of those contained within the cordon. There was no ‘detention.’

3. Kettling will not amount to a breach of article five as long as:

a) The actions of the police are proportionate and reasonable;
b) The containment is for the shortest amount of time possible;
c) The tactic is required to prevent serious disorder and violence.

My view is that there is still considerable scope for courts in the future finding that although in theory there is nothing wrong with kettling, the particular circumstance did not justify the technique. If there is no danger of serious disorder then kettling is likely to be inappropriate. I’m aware that there is currently an appeal from this decision going to the ECHR. Don’t hold your breath!

The problems that I have with the judgment are:

1. The facts as found by the judge in the High Court;
2. The suggestion that people ought to avoid protests where there might be troublemakers;
3. The suggestion that ‘non-protesters’ were allowed to leave: why? Surely a non-violent protester should have just as much right to leave the kettle as a by-stander?
4. The judge at first instance failed to take into account the fact that the situation inside the kettle was to a large extent the creation of the police. I suspect that the majority of people within it were not initially antagonistic towards the police but were made so by the kettle (what are kettles famous for, people? That’s right, boiling!)

Why did the judges reach the decision that they did?

1. Something very similar to kettling is currently used at football matches. Making it impossible to hold people to prevent disorder would destroy current methods of preventing disorder at football matches.
2. Danger of opening the floodgates to all 3,000 of the people at the Mayday protests bringing actions against the police.
3. Innate conservatism and a desire for public order.

Useful quote?

Lord Neuberger of Abbotsbury

‘If it transpired, for instance, that the police had maintained the cordon, beyond the time necessary for crowd control, in order to punish, or “to teach a lesson” to, the demonstrators within the cordon, then it seems to me that very different considerations would arise. In such circumstances, I would have thought that there would have been a powerful argument for saying that the maintenance of the cordon did amount to a detention within the meaning of article 5. However, as is apparent from the clear and careful findings made by the Judge, which have quite rightly not been challenged on appeal, there could be no question of such a contention being raised in the present case.’”

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