Legal ruling and opinion on kettling from an expert

Here i've posted from a source I contacted about G20's who was able to offer me an opinion on the police tactics and in particular the police approach of 'kettling'.

To add my laymans opinion:

For those that are unfamiliar with the term, Kettling is throwing up a police cordon and not allowing anyone within an arbitarily defined legal area to leave. In the recent G20 protests this was used against peaceful demonstrations, which did not have a reasonable chance of violence apparent to me or the many other impartial observers who have talked about it elsewhere.

Whats more, the 'Kettling' of protestors was exacerbated by the use of riot police and deliberate squeezing of the space available to protestors after the police cordon had been created. There were also acts of violence by the police, batoning and hitting with the fronts and sharp edges of shields in order to squeeze in the kettle. How can this be termed disproportionate force against peaceful protest?


The legal researcher I contacted (must remain anonymous) explained the following:

LEGAL OPINION

On the question whether the police tactics, and in particular the use of kettling, are legal - as you rightly say it is a question that has come up before, and reached the House of Lords in the case of Austin, which was decided earlier this year, and - again, as you say - is now going to Strasbourg. We have not done any susbtantive analysis of the issues raised in that case to see what we would think about them, or whether we would agree with the decision of the Lords. But in case it's of interest to you...

...I would also think that, even on the standard established in this judgment, there would be some ground for asking whether the use of kettling this week was, as Lord Hope said it had to be, "resorted to in good faith, [...] proportionate and [...] enforced for no longer than is reasonably necessary" - no doubt that will be an argument advanced by lawyers taking forward complaints from yesterday. Also worth noting the last paragraph that I pasted below - from Lord Neuberger's speech - again, I would think there is a good case to be made for saying that the cordon here was being used to punish the protestors rather than for legitimate public safety reasons.

judgment handed down today from the house of lords on Art 5 right to liberty & the actions of the police in creating cordons in public demonstrations & holding demonstrators within those cordons.

this relates to the May Day protests in oxford circus back in 2001. the situation is not exactly comparable to the Climate camp demonstrations, because the protestors in the May Day case had not given the police prior warning of the demonstration, or co-operated with the police in any way

RULING AS FOLLOWS

http://www.publications.parliament.uk/pa/ld200809/ldjudgmt/jd090128/austin-1.htm

Lord Hope: "There is no suggestion that she herself [the appellant who brought the case] was involved in any violent acts or that she had any other intention than to engage in peaceful protest. Nevertheless she willingly took the risk of violence on the part of other demonstrators with whom she chose to be present, and her own conduct was unreasonable in joining with others to obstruct the highway."

"Any steps that are taken must be resorted to in good faith and must be proportionate to the situation which has made the measures necessary. This is essential to preserve the fundamental principle that anything that is done which affects a person’s right to liberty must not be arbitrary. If these requirements are met however it will be proper to conclude that measures of crowd control that are undertaken in the interests of the community will not infringe the article 5 rights of individual members of the crowd whose freedom of movement is restricted by them."

"In my opinion measures of crowd control will fall outside the area of [Art 5's] application, so long as they are not arbitrary. This means that they must be resorted to in good faith, that they must be proportionate and that they are enforced for no longer than is reasonably necessary."

Lord Scott: "The imposition by the police of the Oxford Circus cordon on the appellant, and many others, was done for the purposes of protecting the physical safety of the demonstrators, including the appellant, and of protecting the neighbourhood properties from the violence that it was justifiably feared some of the demonstrators would perpetrate, violence that the appellant herself regarded as likely to happen. The intention of the police was to maintain the cordon only so long as was reasonably thought necessary to achieve those purposes and it is accepted by the appellant that the cordon was not maintained longer than was necessary to achieve those purposes. In the circumstances the confinement and restriction of movement that the cordon inevitably imposed on those within it did not, in my opinion, constitute an Article 5 deprivation of their liberty."

"I conclude that it is essential, in the present case, to pose the simple question: what were the police doing at Oxford Circus on 1 May 2001? What were they about? The answer is, as Lord Hope has explained in his full summary of the judge’s unchallenged findings, that they were engaged in an unusually difficult exercise in crowd control, in order to avoid personal injuries and damage to property. The senior officers conducting the operations were determined to avoid a fatality such as occurred in Red Lion Square on 15 June 1974 [see http://en.wikipedia.org/wiki/Red_Lion_Square_disorders]. The aim of the police was to disperse the crowd, and the fact that the achievement of that aim took much longer than they expected was due to circumstances beyond their control."

Lord Neuberger: "where, as happened to the appellant in this case, a person is confined in an area against her will by the police for well over six hours, in circumstances where paras (b) and (c) do not apply, the notion that there has been no infringement of article 5 seems, at least on the face of it, surprising. All the more so, given that the appellant was required to remain, in circumstances of some discomfort, in an area of some 2,000 square metres, cordoned in together with apparently some 3,000 other people, and where the confinement was in the context of the appellant exercising her undoubted right to demonstrate."

But... "The police are under a duty to keep the peace when a riot is threatened, and to take reasonable steps to prevent serious public disorder, especially if it involves violence to individuals and property. Any sensible person living in a modern democracy would reasonably expect to be confined, or at least accept that it was proper that she could be confined, within a limited space by the police, in some circumstances. Thus, if a deranged or drunk person was on the loose with a gun in a building, the police would be entitled, indeed expected, to ensure that, possibly for many hours, members of the public were confined to where they were, even if it was in a pretty small room with a number of other people. Equally, where there are groups of supporters of opposing teams at a football match, the police routinely, and obviously properly, ensure that, in order to avoid violence and mayhem, the two groups are kept apart; this often involves confining one or both of the groups within a relatively small space for a not insignificant period. Or if there is an accident on a motorway, it is common, and again proper, for the police to require drivers and passengers to remain in their stationary motor vehicles, often for more than an hour or two. In all such cases, the police would be confining individuals for their own protection and to prevent violence to people or property.

So, too, as I see it, where there is a demonstration, particularly one attended by a justified expectation of substantial disorder and violence, the police must be expected, indeed sometimes required, to take steps to ensure that such disorder and violence do not occur, or, at least, are confined to a minimum. Such steps must often involve restraining the movement of the demonstrators, and sometimes of those members of the public unintentionally caught up in the demonstration. In some instances, that must involve people being confined to a relatively small space for some time.

In such cases, it seems to me unrealistic to contend that article 5 can come into play at all, provided, and it is a very important proviso, that the actions of the police are proportionate and reasonable, and any confinement is restricted to a reasonable minimum, as to discomfort and as to time, as is necessary for the relevant purpose, namely the prevention of serious public disorder and violence. "

"anyone on the streets, particularly on a demonstration with a well-known risk of serious violence, must be taken to be consenting to the possibility of being confined by the police, if it is a reasonable and proportionate way of preventing serious public disorder and violence"

Ends

- The key bit here from the researcher on the application of this ruling to recent protests:

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."