Kettling will not always be lawful

On 15 March 2012 the European Court of Human Rights delivered the long-awaited judgment in Austin & Others v UK (Application nos 39692/09, 40713/09 and 41008/09). The court held 'that there was no deprivation of liberty' and that 'since article 5 is inapplicable, there has been no violation of that provision in this case'.

The judgment has come as a disappointment to those who believe that the police tactic of containment, or 'kettling', is deployed to dissuade individuals from exercising their right to freedom of expression and freedom of assembly. However, if closer examination is given not just to the Strasbourg judgment in Austin but also the recent Court of Appeal case of R (Hannah McClure and Joshua Moos) v The Commissioner of the Police of the Metropolis [2012] EWCA Civ 12 and the case of Castle & Others v Commissioner of Police for the Metropolis [2011] EWHC 2317 (Admin), there is a clear message contrary to that view. All three judgments, based on their own specific facts, recognise the fundamental right to freedom of assembly and instead of giving the police a 'green light' to curtail the right to protest are laying down strict guidelines for them to follow.

In Austin, for example, it is held that: 'It must be underlined that measures of crowd control should not be used by the national authorities directly or indirectly to stifle or discourage protest, given the fundamental importance of freedom of expression and assembly in all democratic societies. Had it not remained necessary for the police to impose and maintain the cordon in order to prevent serious injury or damage, the 'type' of the measure would have been different, and its coercive and restrictive nature might have been sufficient to bring it within article 5.'

The same theme can be seen in the judicial review brought by McClure and Moos who challenged the strategic decision made by the Metropolitan Police to 'kettle' the Climate Camp based outside the Climate Exchange Building in Bishopgate on 1 April 2009. The judgment of the Master of the Rolls states: 'We have concluded that a decision to contain a substantial crowd of demonstrators, whose behaviour, though at times unruly and somewhat violent, did not of itself justify containment'¦' and: 'Containment of a crowd involves a serious intrusion into the freedom of movement of the crowd members, so it should only be adopted where it is reasonably believed that a breach of the peace is imminent and that no less intrusive crowd control operation will prevent the breach.'

An appeal against this judgment has been made to the Supreme Court which in due course will hear the arguments afresh; however, from reading of the judgment I find it difficult to see how a different conclusion will be reached, especially as the test and requirements to contain a crowd are clearly stated. The exceptional circumstances of both Austin and Moos cannot be ignored, and, had there not been a reasonable apprehension of an imminent breach of the peace in both instances, it is unlikely that containment would have been authorised.

Last resort

Containment was also authorised in Castle, again due to an imminent breach of the peace. Claims were brought by Adam Castle, Rosie Castle and Sam Eaton to challenge their containment within Whitehall on 24 November 2010. Adam and Sam were then 16 years old and Rosie was 14. All three had taken part in a demonstration against the proposed rise in university tuition fees and the removal of the educational maintenance allowance. They alleged that their detention within the containment was unlawful as 'the defendant's decision to contain and, therefore, to detain children constituted a breach of his duty under section 11 Children Act 2004' and that they were detained for an excessive period of time.

Pitchford LJ acknowledged 'that the defendant... owed a statutory duty to have regard to the need to safeguard children and to promote their welfare'. However, he rejected the assertion that there had been no regard to that need and did not consider that the defendant was in breach of this duty or any of his public law duties.

Although the claims were dismissed it should be noted that the judgment provides guidance to the police if they take steps to interfere with an individual's freedom of movement. It is held that: 'The obligation upon the defendant was to avoid such action if he could. That duty required, where practicable, planning for alternatives to containment and, in any event, to minimise its impact on innocent third parties.' It goes on to say: 'If the decision maker is unable to show that he could not, by taking reasonable steps, have avoided the need to use containment, or have mitigated the consequences to innocent third parties, in particular children, then he will have acted unlawfully towards them in breach of his public duty.'

This judgment reinforces the argument that 'kettling' is the last resort and that the police must scrutinise their actions if they are to stay within the law. The perception that police containment will always be lawful is not prescribed by case law and peaceful protests should continue to be held without fear or favour.