Kettling at Bishopsgate: wrong and illegal?
Louise Christian argues in an excellent recent article that kettling tactics of the kind deployed by the police on April 1 might be legal, but that doesn't make them right. I have argued in earlier posts that kettling, in general, is wrong. But were the specific kettles on April 1, such as that imposed on the Climate Camp at Bishopsgate, also illegal?
I emphasize that I am not a lawyer. So what I say should be seen as tentative and as an attempt to get a dicussion going on this issue. (I focus on the Bishopsgate case, but my argument might also have relevance in considering the legality of the police kettle around the protest at RBS.)
My basic argument, which I shall elaborate below, is this. The claim that kettling is legal derives from the Law Lords' decision in Austin (FC) v. Commissioner of Police of the Metropolis, decided on January 28, 2009. In this decision, Lord Hope of Craighead determines that kettling tactics are not necessarily in violation of Article 5 of the European Convention of Human Rights which asserts a fundamental and absolute right against 'deprivation of liberty'.
But Lord Hope determines that the practice is consistent with the Convention right in Article 5 only under certain conditions. It is very questionable as to whether the relevant conditions were satisfied at Bishopsgate. Thus, even if the Law Lords' ruling is correct as a matter of human rights law - it is due to be challenged in the European courts - there is reason to think that the police use of the kettle tactic at Bishopsgate on April 1 was unlawful.
The Austin case
The Austin case arose out of the police use of a kettle to contain a group of anti-capitalist protestors in Oxford Circus on May 1, 2001. The facts of the case, as presented in Lord Hope's opinion, are these. On May 1, 2001, a group of around 3,000 or so protestors converged at Oxford Circus at 2pm. This surprised the police, who had received no cooperation from the protest organisers, and had assumed from the little information they had that the protest would begin at 4pm. According to Lord Hope's account, the protest quickly became disorderly and violent. The police reacted by putting a cordon around the protest group (a kettle). This had not been their intention, but was an improvised response to an unanticipated situation which seemed to be getting out of control. The aim was to maintain the cordon until such time as people could be let out so as to achieve a peaceful dispersal of the protesting crowd. The cordon was put in place around 2.25pm and the police did not feel it safe - safe in terms of the risk to the person and property of those around the demonstration - to lift it until much later, completing the crowd's dispersal at 9.30 pm.
Lois Austin was one of the protestors caught in the kettle. There is no suggestion that she personally engaged in any violent activity. Starting in 2002, she brought a case against the Commissioner of the Metropolitan Police, arguing that the kettle constituted a violation of her personal liberty under Article 5 of the European Convention of Human Rights (enshrined in UK law, of course, via the Human Rights Act 1998). Her case was dismissed by the first court she went to, by the Court of Appeal and, finally (so far as the UK courts are concerned) by the Law Lords. As said, she is now taking her case to the European courts.
What Article 5 says
Article 5 (1) of the European Convention of Human Rights begins as follows:
'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.'
It then lists six 'cases' under which a person may be 'deprived of his liberty':
'(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 on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to preventing his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.'
Now, as I understand it, Lois Austin argues that since she was penned into a territory by the police, unable to leave, for something like seven hours (without food, water, toliet facilities, and unable to pick her child up) she did suffer a 'deprivation of liberty'. Moreover, none of the six cases (a) - (f), allowing deprivation of liberty, applied; by all accounts, she was protesting peacefully throughout the day. Thus, her right to liberty and security of the person under Article 5 (1) was violated by the police kettle.
Lord Hope's argument in Austin
How - with what reasoning - did Lord Hope dismiss her case?
The first step in his argument is to argue that there is a distinction to be made between 'deprivation of liberty' as referred to under Article 5 and restrictions on liberty of movement. Even where cases (a) - (f) don't apply, by no means all restrictions on liberty of movement count as a 'deprivation' of the liberty which Article 5 asserts as a fundamental and absolute right. Of course, some restrictions on liberty of movement will count as such. But not all. Otherwise, for example, we'd have to conclude that every crowd control measure at a football ground constitutes a violation of Article 5, an implication that Lord Hope regards as obviously absurd.
Everything now depends on just when a restriction on liberty of movement counts as a 'deprivation of liberty'. Lord Hope begins by noting that much of the case law suggests that one potentially relevant factor is whether or not the restriction passes over some threshold (not clearly defined in the case law) of degree and intensity. By a simple duration criterion, for example, the police kettling of Lois Austin on May 1, 2001, would probably count as 'deprivation of liberty'. However, Lord Hope argues, the duration of the restriction on liberty of movement (that it lasts, say, many hours rather than a few minutes) is not necessarily conclusive.
At this point, Lord Hope takes a second key step in his argument. He claims that in determining whether or not a restriction on liberty of movement is a 'deprivation of liberty' we should look not only at the degree and intensity of the restriction but at what he terms its purpose. He accepts that this is a novel move in the legal thinking around this particular topic, but he argues that it is a sensible move to make, and one that is in line with European court thinking in other areas where the ambit of fundamental rights is in question.
In short, according to Lord Hope, a restriction on liberty of movement does not constitute a 'deprivation of liberty' under Article 5 provided that the restriction is not arbitrary. He provides (at least) three elaborations of what this means:
'...measures of crowd control which involve a restriction on liberty [of movement], if they are not to be held as arbitrary, must be carried out in good faith and should not exceed the length that is reasonably required for the purpose for which the measure was undertaken.' (Para 33.)
'The ambit that is given to article 5 as to measures of crowd control must, of course, take account of the rights of the individual as well as the interests of the community. So any steps that are taken must be resorted to in good faith and must be proportionate to the situation which has made them 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.' (Para 34).
'In my opinion measures of crowd control will fall outside the area of its [Article 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.' (Para 37.)
Lord Hope is not as explicit as he might be - and, perhaps, given that a fundamental right is at stake, as he ought to be - about what the terms 'good faith', 'proportionate' and 'no longer than is reasonably necessary' mean. But it is possible to give these ambiguous words some content by looking at the features of the May 1, 2001 case which impressed him as making the police kettle that day one that was, in his view, introduced in 'good faith', 'proportionate', and enforced 'no longer than...reasonably necessary.'
The key features of the case which impressed him seem to be these:
(1) that the demonstration in question contained a large disorderly, violent element from its beginning; and,
(2) that the disorderly, violent character of the demonstration continued for a very long time after the police introduced the cordon. 'The delay in the dispersal was substantially contributed to by the attitude of the crowd which was not co-operating with the police....about 40% were actively hostile, pushing and throwing missiles' (para 6).
The first feature - a high initial level of disorder and violence - seems, in Lord Hope's view, to make the initial kettling 'proportionate': a proportionate response to a real risk that the demonstration might injure people or damage property around them.
The second feature - ongoing disorder and violence - seems, in Lord Hope's view, to make the duration of the kettle - about seven hours - 'no longer than...reasonably necessary'.
Application to Bishopsgate
Having finally established what (I think) Lord Hope ruled in this case, we can now turn to the case of the kettle at the Climate Camp at Bishopsgate, April 1, 2009.
Did the police kettle at the Climate Camp satisfy Lord Hope's conditions of being in 'good faith', of being 'proportionate' and of being enforced 'no longer than...reasonably necessary'?
Given the evidence we currently have about the nature of the Climate Camp event, from a wide range of credible sources, it seems that it was a very largely peaceful and convivial event. There was certainly nothing like the degree of violence and disorder which Lord Hope sees in the May 1, 2001, Oxford Circus case - or, indeed, any significant violence or disorder at all. Thus, there must be a real doubt as to whether the police initiative in imposing the kettle meets Lord Hope's test of proportionality.
Second, the evidence we currently have also suggests that even after the kettle was imposed - a highly provocative move in the circumstances - the Climate Camp remained, internally, orderly and peaceful. There was no situation of ongoing, prolonged violence and disorder. Thus, it is also questionable as to whether the kettle satisfies Lord Hope's test of being enforced 'no longer than...reasonably necessary' - at least if this means 'no longer than is reasonably necessary to enable people to disperse peacefully'. This was not like the situation at Oxford Circus on May 1, 2001, when according to Lord Hope, the police had no reasonable choice but to keep the protestors penned in for hours because so many of them clearly maintained violent intent.
Conclusion: a case to answer?
I am sure that the police kettle at the Climate Camp at Bishopsgate on April 1 is of a kind that ought to be illegal.
I repeat: I am no lawyer. There might well be a range of considerations relevant to this matter that I do not appreciate. I invite readers to point them out.
But judging the police actions against the detail of Lord Hope's judgment in the Austin case, it seems to me that there is a case to be made that the police's action at Bishopsgate on April 1 was not only of a kind that ought to be illegal: it was illegal.