Human Rights | Talking Tactics | When Is Kettling Justified Asks Richard Scorer

In brief

The need for imminence or immediacy of a threat to peace as a prerequisite for kettling. The state should not lightly infringe the freedom to protest, and proper scrutiny of any decision to do so is the hallmark of a free society.

Kettling involves the containment of crowds of demonstrators within a limited area. It is a controversial police tactic and its lawfulness has been the subject of several appellate court decisions. R (on the application of Moos) v Commissioner of Police of the Metropolis [2012] EWCA Civ 12, [2012] All ER (D) 83 (Jan) is the latest decision to examine the legality of the tactic, and refines the law still further.

Starting point

The starting point for any analysis of kettling is Art 5 of the Human Rights Act 1998 (HRA 1998). This provides a right not to be deprived of liberty except in certain well-de. ned situations and is an absolute right. Thus, on the face of it, the containment of demonstrators will be a breach of Art 5. Hence, court decisions have focused on the exceptional circumstances in which the state will have lawful justification to employ the tactic.

Austin v Metropolitan Police Commissioner [2009] UKHL 5, [2009] 3 All ER 455 was a claim by a demonstrator who attended anti-capitalist protests in London. She challenged kettling under Art 5 and also claimed for false imprisonment. The judge at first instance held that the containment was justified under Art 5(1)(c), as the police reasonably believed that all those within the cordon were about to commit a breach of the peace. Also, there was a policy to release anyone caught up in the protest accidentally or who needed medical attention. This decision relied upon the factual finding that the police reasonably believed that a breach of the peace was imminent. There was no pre-planned kettle; the police were taken by surprise and had to manage what they reasonably believed could become a violent situation. This "imminent risk" approach was essentially endorsed by the House of Lords in 2009. However, all the judges emphasised that police constraints on demonstrators could only be justified by the need to prevent serious public disorder and violence, and must be reasonable and proportionate. The need for imminence or immediacy of a threat to peace as a prerequisite for kettling had also been emphasised by the House of Lords in an earlier case in 2006 (R (on the application of Laporte) v Chief Constable of Gloucestershire Constabulary (Chief Constable...