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12 Socialist Lawyer June 2011
Kettling and the
criminalisation
of protest
Socialist Lawyer June 2011 13
Pictures: Jess Hurd / reportdigital.co.uk
Protest is back! From student
anger against tuition fees to the
half a million marching against
the ConDem cuts, people are
back on the streets. But the
police and the courts are
responding, as Kat Craig
and Fiona McPhail report...
Protest has been a counterweight to oppression
throughout history and has been a crucial method by
which the voiceless have expressed their opposition,
leading to some of the most significant developments
in society. In this context, it comes as no surprise
that protest has always been met with draconian re-
pression by governments, gripped with the fear of popular up-
risings and intent on retaining their wealth and position. In the
current climate of all-pervasive funding cuts, opposition has in-
creasingly been voiced in terms of a broader campaign for wider
social justice, rather than individual struggles. This escalating
and, most importantly, collective nature of the recent protests is
what those in power fear and repress most.
Whilst not new, perhaps the most controversial police tactic
used to quash dissent is the widespread use of the containment
of protesters, popularly known as ‘kettling’. The law as it stands
allows the police to kettle protesters in specific circumstances. In
2009, the House of Lords, in Austin v The Commissioner of
Police of the Metropolis Austin [2009] 1 AC 564 , found that the
cordon imposed around protesters in Oxford Circus for ap-
proximately seven hours on May Day 2001 was lawful. The
Court held that ‘crowd control measures’ would be permitted in
law if they were resorted to in good faith, were proportionate and
were enforced for no longer than was reasonably necessary.
The specific issue before the Lords was, first, whether Ar-
ticle 5 of the Convention, which protects the right to liberty,
was engaged, and, second, if so, whether the interference with
this right could be justified. The Lords did not specifically ad-
dress the issue of whether the containment was lawful at
common law, because it was accepted by the parties that if Ms
Austin’s detention was an unlawful deprivation of liberty con-
trary to article 5(1) of the Convention, the Court of Appeal’s
finding that this was a lawful exercise of breach of the peace
powers at common law could not stand, and vice versa.
However, the Lords found that Article 5 was not engaged,
thereby conveniently obviating the need to consider the
second question of whether any interference was justified.
The question was circumvented by the Court concluding that
the kettle imposed was a restriction of movement and not a
deprivation of liberty. For the purposes of this case, the cru-
cial difference between the two is that Article 2 Protocol 4 of
the Convention, which defines the restriction of movement,
has not been ratified by the United Kingdom, nor are the
rights that it sets out among the Convention rights within the
meaning of the Human Rights Act 1998.
By looking at paradigm cases the Court identified a list of
factors which should be taken into account when distin-
guishing between a restriction on freedom of movement and
14 Socialist Lawyer June 2011
Boiling point.
Police kettle in
Piccadilly Circus
on the day of the
massive march for
the alternative,
organised by the
TUC.
Pictures: Jess Hurd / reportdigital.co.uk
by Kat Craig
Socialist Lawyer June 2011 15
a deprivation of liberty. These factors include the duration, ef-
fects and manner of implementation of the measure in ques-
tion. The police’s case was that, in addition, the purpose of a
measure could also be taken into consideration when deter-
mining whether Article 5 was engaged.
Ms Austin argued that the question of purpose only
became relevant when considering the exhaustive list of per-
mitted restrictions on liberty set out in Article 5(1)(a) to (f),
not at the initial stage of assessing whether or not Article 5
was engaged. Ms Austin was unsuccessful, and the Court
found that the purpose of containment was relevant to
whether Article 5 is engaged. In this case, the purported pur-
pose was to prevent personal injury and damage to property.
The question of whether or not the purported purpose of
the imposition of a kettle can be taken into consideration
when determining the applicability of Article 5 is currently
being challenged in the European Court of Human Rights,
and a hearing has been listed in the Grand Chamber in Sep-
tember this year.
If Strasbourg does accept Ms Austin’s arguments regard-
ing the ‘purpose’ point, it is difficult to see how they will find
in the UK’s favour overall. The list in Article 5(1) (a) to (f) of
the cases where deprivations of liberty are permitted is ex-
haustive and is to be narrowly interpreted (as the European
Court of Human Rights has repeatedly emphasised). No ref-
erence is made in Article 5 to the interests of public safety or
the protection of public order as one of the circumstances in
which a person may be deprived of his liberty. This is in sharp
contrast to, for example, Article 10(2), which expressly qual-
ifies the right to freedom of expression in these respects.
In the interim the police appear to have misconstrued the
restrictions imposed on the use of kettling, treating the judg-
ment as a carte blanche to deploy kettles more broadly than
ever before. Her Majesty’s Inspectorate of Constabulary’s
report of July 2009, commissioned in response to widespread
criticism of kettles imposed during the G20 protests, noted
that the tactical plan for containment failed to ‘explicitly ad-
dress the legal criteria set out in the [House of Lords judg-
ment] regarding the use of containment as a crowd control
measure, and it is not apparent (...) that all commanders were
familiar with the criteria that had to be met.’
The ‘stringent requirements’ set out in Austin were re-em-
phasised in the recent case of R on the application of Moos
and another [2011] EWHC 957 (Admin) where the High
Court found that the police acted unlawfully in the way they
kettled protesters participating in the Climate Camp at the
G20 demonstrations in 2009, because there was no risk of
imminent breaches of the peace sufficient to justify full con-
tainment at the Climate Camp. Whilst the judgment does not
prohibit the use of kettling per se, it demonstrates that the
courts are prepared, in certain circumstances, to hold the
s
“The question of whether or not
the purported purpose of a kettle
can be taken into consideration
when determining the applicability
of article 5 is currently being
challenged in the European Court
of Human Rights, and a hearing
has been listed in the Grand
Chamber in September this year.”
Protest is on the agenda again. From the revolu-
tions in the Middle East, to the student protests
against tuition fees in late 2010, the TUC-organ-
ised ‘March for an Alternative’ and most recently
the riots in Stokes Croft in Bristol against Tesco,
crowds of people are taking to the streets in order
to express their anger against a general sense of injustice,
whether that be the cuts to jobs and services or repression by
tyrannical regimes.
While these protests are incredibly inspiring, they have
been followed by heightened State repression. The recent
waves of student demonstrations against the increase in tu-
ition fees and the abolition of the EMA have led to the arrest
of many students and school pupils. Those students arrested
and charged have faced allegations including Breach of the
Peace, Violent Disorder and Criminal Damage. Some of
these offences carry lengthy sentences. In the case of Crim-
inal Damage it can be up to ten years’ imprisonment. Many
of those involved in the student demonstrations had never
been on a demonstration, let alone witnessed hostile police
tactics.
The events which unfolded during the autumn student
protests and more recently at Trafalgar Square on 26th
March 2011 have seen the resurgence of the debate on what
constitutes legitimate protest, and conversely what powers
the police should have to control public protest. The em-
phasis in the media and amongst the political elite has been
on the criminal damage caused and the ‘violence of a mi-
nority’. The challenge is now for lawyers to protect the right
to protest and where possible question the legitimacy of the
powers used to undermine it.
In the UK the right to protest has traditionally been de-
fined as a negative liberty. In other words protest was per-
police to account for unjustified containment of protesters
and this may force the police to reconsider their tactics.
Yet the Moos judgment remains very fact sensitive, and
may be appealed. In the meantime, we must maintain public
pressure on the police to change their tactics. In particular, the
concerning development of kettling children as young as
twelve years old in the freezing cold, without access to food,
water or toilet facilities, sometimes for more than five hours
cannot continue. Similarly, kettles imposed pre-emptively, in
anticipation of disruption but without clear evidence of an
imminent risk of serious disorder can no longer be consid-
ered lawful. Even prior to the Moos judgment, many kettles
appear to have fallen foul of the Austin requirement that they
be imposed for a legitimate purpose. The most obvious ex-
ample of this is the extensive use of kettling to obtain intelli-
gence, during which protesters have been contained for hours
whilst being photographed by police intelligence teams. In
many cases police also relied on the extensive powers con-
ferred upon them under anti-social behaviour laws, refusing
to release protesters until they provided their details.
Kettling is but one of the problems protesters face. In more
general terms, the use of increasingly violent and oppressive
tactics means that the police are not only unwilling but also
incapable of facilitating peaceful protest. And whilst the state
points towards violence amongst protesters, it ignores the fact
that kettling and the excessive use of force by police provokes,
rather than prevents, violent protest. Further, kettles, and the
police aggression and force that invariably accompany them,
place protesters at risk of significant harm as illustrated by the
case of Alfie Meadows who sustained a brain injury as a
result of a baton strike.
In addition, current police tactics criminalise peaceful
protest: young people participating in the democratic process
are being treated as trouble-makers, when in fact their en-
gagement with social issues should be applauded, particularly
where their participation has overwhelmingly manifested
itself in peaceful civil disobedience.
No doubt, occupations, marches and sit-ins cause others
some minor inconvenience. However these are the methods
being used to try to safeguard fundamental aspects of the wel-
fare state. Not only do we now risk losing essential public
services, but treating legitimate opposition as criminal dissent
dilapidates the tradition of protest and threatens the right to
participation of everyday people in society which was so hard
gained by our predecessors.
Kat Craig is Co-Vice Chair of The Haldane Society and a
solicitor at Christian Khan Solicitors. The firm represents Lois
Austin in
Austin v the UK
as well as numerous children and
young people, including Alfie Meadows, challenging police
conduct during the recent student protests.
16 Socialist Lawyer June 2011
s
Picture: Jess Hurd / reportdigital.co.uk
Defending
by Fiona McPhail
Above: Heavy-
handed police in
riot gear in Stokes
Croft, Bristol.
Left: Students vent
their spleen on a
police van last
November.