Kettling schoolchildren: Can the police kettle demonstrators?

The UK High Court has dismissed claims by three schoolchildren that they were kettled illegally by police in the UK National Student Walkout anti-fees protests last November. Adam Castle, 16, his sister Rosie, 15, and Sam Eaton, 16, had claimed damages for alleged human rights violations after police held demonstrators in Whitehall, London, for several hours in freezing temperatures. So can the police kettle demonstrators?

The issue of whether police kettling demonstrators is legal is uncertain since legal decisions in the English courts have gone both ways. It has taken on a new urgency in the light of the UK riots and the likelihood of more ill-natured demonstrations as austerity takes its economic toll.  The European Court of Human Rights case of Austin v United Kingdom (heard 14^th September 2011) may provide the definitive answer. (Note: Judgment of the European Court is now released, 15th March 2012: Austin v United Kingdom) (See main points below.)

Kettling involves the cordoning of demonstrators, possibly for hours on end, with release at police discretion. This is what happened to Lois Austin in the May Day 2001 anti-globalisation protest, kettled in Oxford Circus, central London, the first time the police had used the tactic. She brought a case in the English courts claiming damages for false imprisonment, a common law tort, and breach of her right to liberty under Article 5(1) of the European Convention on Human Rights: “Everyone has the right to liberty and security of person”.

(It should be noted that Austin’s case is not treated as an Article 10 issue (“Everyone has the right to free expression”) perhaps because her original co-claimant, Geoffrey Saxby, was merely passing by and not, therefore, requiring free expression at that time, while Austin continued to protest her views pretty vociferously while kettled.)

“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 of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so” – Article 5 (1) (a)-(c)

In the High Court case Tugendhat J quoted Halsbury’s Laws of England defining the tort of false imprisonment: “To compel a person to remain in a given place is an imprisonment”. However he found that the police could claim justification; they had had a reasonable expectation that a breach of the peace was imminent (“the threshold of imminence”) and considered their actions came under the third of the six exceptions (a to f) in Article 5: “to prevent his committing an offence” – meaning to prevent someone, not the peaceful claimants, committing an offence.

In contrast, the Court of Appeal in 2007 rejected any notion that Article 5(1) was engaged. Kettling was merely a “restriction” of liberty. Article 5 did not apply “because the containment of the appellants within the cordon did not amount to a deprivation of liberty within that article, as opposed to an interference with liberty of movement”.

A literal reading of Article 5 suggests it is about unlawful arrest and detention, not restriction of liberty, which is (arguably) covered by article 2 of Protocol 4 of the Convention, which is about free movement. Strasbourg has made the distinction between Protocol 4 “restriction” and Article 5(1) “deprivation” in Guzzardi v Italy, 1980. This ruled that:

“Article 5(1) is not concerned with mere restrictions on liberty of movement; the starting point must be the concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure; the difference between deprivation of and restriction upon liberty is merely one of degree or intensity, and not one of nature or substance.“

So for the Court of Appeal “there was not here [on May Day 2001] the kind of arbitrary deprivation of liberty contemplated by the Convention [in Article 5]”. Britain has not ratified the free movement Protocol, so, in effect, the Court of Appeal considered that common law was Lois Austin’s only recourse.

At common law the kettling was deemed reasonable because, in these “extreme and exceptional circumstances” the police had a reasonable expectation of an imminent breach of the peace “even though the police did not reasonably suspect that the individual claimants were about to commit a breach of the peace”. The kettling was for the benefit of the crowd who would have otherwise been in danger from the trouble-makers, and the police had no alternative. It follows that if the police had decided to use kettling from the start or left demonstrators in cold and discomfort merely for convenience or as a perverse punishment, the judgment would probably have been different.

Austin appealed on the Article 5 issue to the House of Lords (Austin v Commissioner of Police of the Metropolis) (now Supreme Court).  The common law claim had failed but the hope, presumably, was that the European Convention might trump common law and result in a wider ban on kettling. The Lords rejected Austin’s appeal – but muddied the waters somewhat. It seemed, up to a point, to follow the Court of Appeal in declaring Article 5(1) was not engaged – but then found such tactics as kettling fell outside Article 5 only if “they are not arbitrary”. Lord Hope concluded: “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.”

This is a rather Alice in Wonderland way of proceeding: first decide whether kettling is lawful; if it is not, find a law under which it is unlawful – in this case Article 5(1); reject any of the a) to f) exceptions  under this Article (because you’ve already decided it’s unlawful). But if it is lawful, then it never had anything to do with Article 5(1) in the first place!

To have stuck with the Court of Appeal argument that Article 5(1) was not engaged because it is about arrest or close confinement, not crowd control and restriction on movement, would have had an elegant simplicity. But Lord Hope created a strange hybrid: a ruling that said Article 5(1) was and was not engaged in kettling. This reintroduced Article 5 into the mix and allowed the High Court in another kettling case, Moos and McClure v Commissioner of Police of the Metropolis (heard in March 2011) to take it into account.

Here it was decided that in the Bishopsgate “Climate Camp” G20 demonstration of 2009 “containment of the Climate Camp was not justified by the behaviour and conduct of those at the Climate Camp alone”. The real threat was at a separate demonstration at the Royal Exchange. A cordon may have become necessary later in the evening to prevent the Royal Exchange protesters reaching and hijacking the Camp, but the afternoon’s kettling and the pushing of the Climate Camp protesters into particular streets was unnecessary. By night time, though, a final clearing of the camp from the streets was “fully justified”.

Out of this close consideration of the hour-by-hour situation at Bishopsgate, coupled with a certain amount of lofty hindsight, not available perhaps to the police on the ground at the time, the High Court was able to say the kettling was unlawful – under common law and, by implication, under the Lords’ engaged/not engaged version of Article 5(1). Thus “the circumstances in which police containment action would be lawful at common law are for practical purposes the same as the circumstances in which there would be no violation of Article 5”. Both would require  police to act bona fide for the general good, proportionately and reasonably.

This is exactly the approach used by judges in the case of the three school children in the fees demonstration – with the opposite result. In Adam Castle, Rosie Castle and Sam Eaton v Commissioner of Police for the Metropolis it was argued that the kettling of Adam Castle and his friends became unlawful because no proper release plan was communicated to frontline police officers. The judges, however, ruled that the Metropolitan Police Commissioner was not in breach of his public law duties. The action was “necessary, proportionate and lawful”.

The Moos case is now before the Court of Appeal, which would do well to wait for the benefit of the European Court of Human Rights judgment (which has three non-demonstrators joined in the action). At Strasbourg one cannot help thinking that the Court of Appeal’s distinction between Article 5 deprivation of liberty and Protocol 4 interference with liberty will be adhered to. It is, after all, Convention law and a Strasbourg judgment cannot really take account of one signatory’s opt-out in setting its precedents for all signatories. Whether the judges in the Grand Chamber will consider holding mere passers-by from lunch-time to night-time is merely interference rather than deprivation of liberty is an interesting point. So too is the question of whether they will take account of the protests sweeping the continent in forming their judgment.

One hopes they will quickly make known their views on kettling since the police would very much like to know where they stand – and also where they can tell other people to stand.

Since publication of this post the Court of Appeal has reversed the High Court judgment in Moos and McClure, saying kettling of the climate camp protesters was lawful, “justifiable on the ground that containment was the least drastic way of preventing what the police officer responsible for the decision reasonably apprehended would otherwise be imminent and serious breaches of the peace”. A Guardian report is here. The judgment is here. A view from the UK Human Rights Blog is here.

Stop Press: The final judgment of the European Court of Human Rights in Austin v UK is here. A good analysis by Obiter J is here. The main points of the judgment are extracted below:

European Court of Human Rights judgment in Austin v United Kingdom (extracts)
57. Article 5 § 1 [on liberty] is not concerned with mere restrictions on liberty of movement, which are governed by Article 2 of Protocol No. 4 [on free movement]. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5 § 1, the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question. The difference between deprivation of and restriction upon liberty is one of degree or intensity, and not of nature or substance.

59.  The Court is of the view that the requirement to take account of the “type” and “manner of implementation” of the measure in question … enables it to have regard to the specific context and circumstances surrounding types of restriction other than the paradigm of confinement in a cell.

60. … It cannot be excluded that the use of containment and crowd control techniques could, in particular circumstances, give rise to an unjustified deprivation of liberty in breach of Article 5 § 1. In each case, Article 5 § 1 must be interpreted in a manner which takes into account the specific context in which the techniques are deployed, as well as the responsibilities of the police to fulfil their duties of maintaining order and protecting the public, as they are required to do under both national and Convention law.

64.  The Court considers that the coercive nature of the containment within the cordon; its duration; and its effect on the applicants, in terms of physical discomfort and inability to leave Oxford Circus, point towards a deprivation of liberty.

65.  However, the Court must also take into account the “type” and “manner of implementation” of the measure in question. As indicated above, the context in which the measure was imposed is significant.

66.  It is important to note, therefore, that the measure was imposed to isolate and contain a large crowd, in volatile and dangerous conditions. As the Government pointed out, the police decided to make use of a measure of containment to control the crowd, rather than having resort to more robust methods, which might have given rise to a greater risk of injury to people within the crowd. The trial judge concluded that, given the situation in Oxford Circus, the police had no alternative but to impose an absolute cordon if they were to avert a real risk of serious injury or damage. The Court finds no reason to depart from the judge’s conclusion that in the circumstances the imposition of an absolute cordon was the least intrusive and most effective means to be applied. Indeed, the applicants did not contend that, when the cordon was first imposed, those within it were immediately deprived of their liberty.

67.  Moreover, again on the basis of the facts found by the trial judge, the Court is unable to identify a moment when the measure changed from what was, at most, a restriction on freedom of movement, to a deprivation of liberty. It is striking that, some five minutes after the absolute cordon was imposed, the police were planning to commence a controlled release towards the north. Thirty minutes later, a second attempt by the police to begin release was begun but suspended, because of the violent behaviour of those within and outside the cordon.

68.  The Court emphasises that the above conclusion, that there was no deprivation of liberty, is based on the specific and exceptional facts of this case. Furthermore, this application did not include any complaint under Articles 10 or 11 of the Convention and the Court notes the first instance judge’s finding that there had been no interference with the Article 10 and 11 rights of freedom of expression and assembly of those contained within the cordon.

Th court holds by fourteen votes to three that there has been no violation of Article 5 of the Convention.