Kettling: lawful or unlawful?
On Thursday 9 December 2010, thousands of student fees protesters were prevented by police from leaving Trafalgar Square in London for several hours; this police tactic is known as “kettling”. On 14 December, the Guardian reported that five of those protesters have instructed lawyers to take legal action against the Metropolitan Police Commissioner. According to the report, the protesters are arguing that their rights under articles 5, 10 and 11 of the European Convention on Human Rights were infringed. The question of whether kettling breaches the protesters’ article 5 right was considered by the House of Lords (as it was then known) in Austin v Commissioner of Police of the Metropolis [2009] 1 A.C. 564.
The facts
On 1 May 2001, a large demonstration took place in central London calling for the cancellation of Third World debt, the eradication of poverty, a stop to the privatization of the London Underground and an end to pollution of the environment. During the afternoon approximately 3,000 demonstrators gathered in Oxford Circus; they were prevented from leaving the area by a police cordon for about seven hours. The appellant, Ms Austin, was one of those demonstrators. She sued the Metropolitan Police Commissioner alleging, amongst other things, that her article 5 right had been breached. Her claim was rejected by Mr Justice Tugendhat at first instance and thereafter by the Court of Appeal. She appealed to the House of Lords.
The result of the appeal
The appeal was heard by Lords Hope, Scott, Walker, Carswell and Neuberger. They unanimously rejected it. The leading speech was delivered by Lord Hope. The remaining law lords indicated that they agreed with Lord Hope. Lord Neuberger added some interesting comments of his own. Accordingly, I will concentrate on the speech of Lord Hope in particular and, to a lesser extent, on the speech of Lord Neuberger.
Lord Hope’s speech
Lord Hope said that the crucial issue was whether the case involved the article 5 right to “liberty and security of person” or the right to “liberty of movement” conferred by article 2 of the Fourth Protocol to the Convention. In the remainder of his speech he distinguished between these two articles by referring to a deprivation of liberty (breach of article 5) and a restriction of liberty (breach of article 2). If the case involved only a restriction (as opposed to a deprivation) of liberty, the appeal was doomed to failure as the United Kingdom has not ratified article 2 and the right it confers is not included in the Human Rights Act 1998. Lord Hope then went on to discuss in detail the principles that govern the distinction between the two rights. He reviewed the relevant European and domestic case law and concluded as follows:
“If the difference between a restriction of liberty and a deprivation of liberty were to be measured merely by the duration of the restriction, it would be hard to regard what happened in this case as anything other than a deprivation of liberty…But it is very well established that, in order to determine whether the threshold has been crossed, a much wider examination of the facts and circumstances is appropriate…account should be taken of a whole range of factors such as the nature, duration, effects and manner of execution of the…measure in question…Whether it has been crossed must be measured by the degree or intensity of the restriction.”
Lord Hope then went on to consider the relevance of the purpose for which a person’s freedom of movement has been restricted. He concluded that the purpose behind the restriction is relevant:
“It would seem in principle that the more intensive the measure and the longer the period it is kept in force the greater will be the need for it to be justified by reference to the purpose of the restriction if it is not to fall within the ambit of [article 5]."
Closely linked to the purpose of the restriction appears to be the question of whether the restriction is arbitrary. Lord Hope referred with approval to the reasoning of the Grand Chamber in Saadi v United Kingdom (2008) 47 EHRR 427. In that case the Grand Chamber said that it is a fundamental principle that no detention that is arbitrary can be compatible with article 5. The Chamber went on to state that detention will be arbitrary if it is not carried out in good faith or if its length exceeds that reasonably required for the purpose for which the detention was imposed.
Applying these principles, Lord Hope said that there was a compelling purpose behind the restriction of the demonstrators’ freedom of movement, namely to protect people from injury or to avoid serious damage to property. In addition, there was no evidence of a lack of good faith on the part of the police or of the length of the restriction exceeding that reasonably required to achieve the said purpose. Accordingly, the appellant’s detention had not been arbitrary and therefore article 5 was not engaged and the appeal failed.
Lord Neuberger’s speech
Lord Neuberger, whilst agreeing with Lord Hope in dismissing the appeal, appeared to have more sympathy with the idea that kettling, in certain circumstances, would be unlawful.
“If it transpired, for instance, that the police had maintained the cordon, beyond the time necessary for crowd control, in order to punish, or ‘teach a lesson’ to, the demonstrators within the cordon, then…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.”
Lord Neuberger added that, in those circumstances, “it would not be possible for the police to justify the detention under the exceptions in paragraphs (b) or (c).” These paragraphs state that infringement of the article 5 right will be justified in the following cases:
(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;
Conclusion
It seems, therefore, that, as far as the article 5 argument is concerned, the lawyers acting for the five protesters involved in the recent Trafalgar Square demonstration will have to come up with some evidence of a lack of good faith on the part of the police or that the length of time their clients were restrained exceeded that reasonably required to protect people from injury or to avoid serious damage to property. Any evidence that the police were motivated wholly or partly by a desire to punish the protesters or teach them a lesson would be sufficient. I wish them the best of luck. Surely all right minded people must be dismayed by the sight of demonstrators, many of them children, many of them peaceful, many of them without warm clothing, being kept outside in sub-zero temperatures for hours on end without adequate food, drink or toilet facilities. Talk of the use of water cannons only adds to the concern. Perhaps a successful legal action will force the authorities to come up with a more civilized way of managing the undoubted public order problems caused by demonstrations of this sort.
Laurence Toczek LL.B LL.M (Solicitor and Freelance Law Tutor)