Kettles: a legitimate restriction on freedom of assembly?

 A change in the policing of demonstrations in London, in particular, has been evident since the May Day Protest of 2001. This is the advent of ‘kettling’ whereby the police set up a containment area where demonstrators are corralled and controlled. In Austin v Commissioner of Police of the Metropolis [2009] EWHC 90151, a case arising out of the 2001 May Day Protest, this practice was found not to be a restriction on the right to liberty set out in Article 5(1) of the European Convention on Human Rights (ECHR) and, therefore, lawful (Austin is currently before the European Court of Human Rights who may take a different view to the House of Lords). Recent student demonstrations against increases in university fees have been subject to kettling by police, firstly on 25 November and then again on 30 November. This was in response to the turn of events taken by the first student protest on 10 November during which the headquarters of the Conservative Party were stormed. The practice has been controversial not least in the aftermath of the G20 protests on 1 and 2 April 2009 in which one man died and several protesters were injured. Police behaviour on that occasion has been roundly criticised and was the subject of review by Her Majesty’s Inspectorate of Constabulary and the Joint Committee on Human Rights.

 The law of protest in England and Wales is complex with both constitutional, statute and common law provisions coming into play. The Human Rights Act 1998 incorporating the ECHR provides the right to peaceful assembly and association (Article 11 ECHR). The Public Order Act 1986 sets out the conditions to which processions and static demonstrations are subject. It allows the police to impose conditions which are necessary to prevent serious public disorder, serious damage to property or serious disruption to the life of the community, or where the purpose of the organisers is to intimidate others with the view to compel them to do something they have no right to do or not to do something they are entitled to (s. 12). Such conditions may change the time or the route or limit the number of people involved. It also requires march organisers to notify the police in advance (s. 11). Failure to notify and failure to comply with the conditions are both offences. The police also have powers of arrest for breach of the peace under the common law. Other provisions include those creating the stop and search powers under the Police and Criminal Evidence Act 1984 and the Terrorism Act 2000 and the Serious Organised Crime and Police Act 2005 (SOCPA) prohibiting demonstrations in various designated areas without prior notification and authorisation. The area around Parliament Square, including Trafalgar Square, is a designated area under the SOCPA. Kettling comes under the discretion accorded to the police by the Public Order Act.

 In the case of the recent student protests, the police seem to have put into action some of the recommendations of the reviews into their policing of the G20 protests. There have been no deaths or reports of the police using riot shields and batons to beat protesters. There have been no reports that police officers were not wearing their identification numbers. There are, however, indications that horse charges were used on at least one occasion, that one protester was punched by a police officer and that protesters were so anxious not to be kettled that they divided and moved to other locations. There are also indications that non-protesters were caught within the cordon including a heavily pregnant lady. This is the most obvious drawback to the practice and one that the police do not, as yet, seem able to rectify, despite numerous recommendations that police officers are trained to differentiate protesters and non-protesters.

 The ruling in Austin, that kettling is lawful if undertaken in good faith and proportionate, does not offer the police a blanket protection. The proportionality test should be especially powerful in examining their use of kettling, particularly in a protest environment where the participants are as young as 15 or 16. The Coalition Government has promised to restore the right to non-violent protest (The Coalition: Our Programme for Government, Chapter 3). It is clear that the regulation of kettling cannot but be included in any measure which seeks to protect the right to freedom of peaceful assembly and association in England and Wales.

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