The European Court of Human Rights has ruled that the police tactic known as ‘kettling’ does not violate human rights. Ben Metters looks at the implications.
‘Did you see the stylish kids in the riot? Shovelled up like muck, set the night on fire.’
Over a decade since the May Day riots in 2001, the lyrics of the Libertines classic ‘Time for Heroes’, based upon Pete Doherty’s experience of police brutality on that day, still resonate strongly. At around half past two in the afternoon on that day, police contained over one thousand five hundred people in oxford circus, central London. The implementation of the containment was unannounced; leaving both protestors and non-protestors alike stranded for up to 7 hours with no access to food, water or lavatory facilities. Meanwhile, across the city, bridges across the Thames were closed as protests raged throughout central London. According to Guardian live reports from the day, Waterloo, Vauxhall, Hungerford and Lambeth bridges were all closed by 5pm.
On the 15th March this year, the culmination of an 11 year legal battle came to a devastating end. In the case of Austin and others v the United Kingdom, the European Court of Human Rights ruled that containment, a tactic used by the police, known as kettling, which often leaves those within the containment zone devoid of toilets, food and water for extended periods of time, did not violate the human right to liberty and security of person per article 5 of the European Convention on Human Rights (ECHR).
In the majority judgement (14 judges to 3), the court concluded that an absolute cordon was ‘the least intrusive and most effective means to be applied’ in order to control the crowd and prevent an escalation in violence. This reasoning is, at best, naïve. At worst, it is a gross subversion of rights for policing convenience.
The appeal by Lois Austin and others was based upon what they saw as a violation of their rights under Article 5 of the European Convention on Human Rights. The article provides that ‘Everyone has the right to liberty and security of person’. As with every article in the convention, this right is not absolute; there are circumstances where this right may be subverted, the detention of a person after conviction by a competent court, for example.
The court commented that Article 2 of Protocol 4, ‘Everyone… (has) the right to liberty of movement’, would also be salient in this instance, though the United Kingdom has not ratified this protocol and is, therefore, not bound by it. Like Article 5, this right comes with exceptions, particularly in terms of the violation of this right to allow ‘maintenance of ‘ordre public’.
The majority judgement in this case included such lacklustre reasoning as ‘advances in communications technology had made it possible to mobilise protesters rapidly and covertly on a hitherto unknown scale’, and ‘members of the public generally accept that temporary restrictions may be placed on their freedom of movement in certain contexts, such as travel by public transport or on the motorway’.
Protestors have been mobilising rapidly for years. The advances in communications technology have, without doubt, made this an easier, but it is certainly not a new phenomenon.
It is also, almost comical to compare a situation in which over 1,500 people are placed in a dangerous, intimidating and violent position with their movement suddenly and severely restricted by a conscious ‘pre-emptive’ decision of an authority with that of someone caught in holiday traffic on the m4, or delayed by a signal failure on the northern line.
The basis of the reasoning behind stating that there had been no violation of the rights afforded to citizens under article 5 is that restrictions on movement, so long as they are unavoidable and are necessary to avert the risk of serious injury or damage, and are kept to a minimum required for that purpose, cannot be properly described as ‘deprivations of liberty’. This is a true and correct interpretation of the law. Policing public order situations would be impossible were it not.
However, what seems to have bypassed the judges is the fact that kettles are an incredibly dangerous place where the risk of serious injury or damage to those people and buildings within it are greatly increased; the death of Ian Tomlinson or the serious injury of Alfie Meadows would not have happened were it not for the containment at the respective protests. Furthermore, the closing of a motorway blocked by debris from a crash which leaves motorists ‘deprived of liberty’ would most certainly be described as unavoidable whereas the absolute containment of protestors on May Day 2001 is not capable of bearing the same description. Unarguably, there were alternatives.
The chances of any of the 17 judges sitting on the case having any experience of being kettled are slim. The chances that any of them were in the containment on that day are very low indeed.
Having been ten at the time of the 2001 May Day protests, I don’t have personal experience of what it was like in Oxford Circus on that day. I have, however, been kettled.
The tactic of absolute containment is known colloquially as a kettle for good reason. Like a kettle, temperatures within a police cordon, of the type seen on May Day 2001 and more recently employed in late 2010 in the student protests, rise to boiling point. A kettle taps into the innate frustration of a protesting crowd, allowing it to manifest into tangible anger in the form of violence against the officers enacting the cordon. Scenes like those in parliament square in December 2010 would not have come to fruition if it were not for the degradation and misinformation that is synonymous with containment tactics.
At any protest, there will be a myriad of different people representing different spectrums of society, all with different opinions, intentions and, in turn, needs. Consequently, the policy of absolute containment will, invariably, have differing effects on the liberty of every individual caught within the police cordon. Whilst, for person A, being unable to leave an area devoid of toilet facilities may not interfere with their rights, it may have an incredibly detrimental effect on person B, presenting an obvious interference with their rights. Person A or B could be anyone: A pregnant woman out shopping in oxford street, a seasoned activist with a protest survival kit on their back or a child. All would be swept up by the indiscriminate containment and, according to the European Court of Human rights, none of these people would suffer any interference with their rights providing it was ‘unavoidable’.
The protest which took place in Bristol against the fees in the 30th November is a prime example of why the assertion that absolute containment is the least intrusive and most effect tactic available is utterly fallacious. It also represents an instance where containment was most certainly not unavoidable.
Students from the University of Bristol, the University of the West of England, countless further education establishments and a number of schools converged in central Bristol for the second such protest in as many weeks. The previous protest had been stymied by aggressive police lines, containing protestors to a very small part of the city centre. There was a general consensus amongst those present that this wasn’t conducive to making our protests heard.
Several hours of ‘Cat and Mouse’ occurred with the crowd roaring around central Bristol, many of them in wellies due to the freezing weather. At around 4pm, the protest reached the University of Bristol’s administrative headquarters, the site of a rally the week before. Calls for dispersal from within the crowd were answered with weary agreement as the protest began to disband. It was at this point, having failed to contain the protest at various other points within the day, Avon and Somerset police moved in and formed an absolute cordon.
The boisterousness of the crowd had clearly dissipated. If even a shred of common sense had been employed by the police, it would be clear that the potential for violence had met the same fate. The police kettled the protestors nonetheless and were met with renewed vigour. The vindictive nature of the containment only fanned the embers of frustration that had been dampened by a day of loud protest.
Several breakout attempts later, including one that featured the use of a rope as tool to ‘round up the police’, batons were drawn.
Aside from one incident involving mustard, a Vodafone shop and several police officers, the day had been relatively peaceful. It was only when the cordon was implemented that the violence spread from the hardcore that were present to ‘fight with the pigs’.
The penned in protestors, some of whom were school children, swayed back and forth against police lines, batons were used, arrests made and police horses charged. One of the most harrowing incidents of the day was the arrest of a girl, still clad in her school uniform. Hysterically screaming, she was manhandled into the back of a police van, but not before the local press got a few good shots of her contorted, red face.
The containment that day lasted between two and three hours and was entirely unnecessary. Any threat of serious injury or damage had long since passed.
The theme of a lack of violence until a cordon is enforced is repeated over and over again; the national demonstration against the fees on the 9th December 2010 and the May Day protests 2001 being two prime examples.
The tactic itself is not un-intrusive. The pure frustration that comes in response to being contained is generally met by force from the police in order to preserve the integrity of the cordon. It is used as a means of breaking the spirit of those protesting.
At the national student demonstration in 2010 in Parliament Square, misinformation was rampant. At one point we were told none of us could leave as the site was being treated as a crime scene. Every exit to parliament square, other than the one you were at magically appeared to be the way out until, that is, you got to an alternative exit and realised no-one was getting out any time soon. After the vote in the commons that tripled the fees, anger spilled over to Government buildings as well as the police. It was around this point we were pushed back as ‘Thousands of trade unionists were marching down Whitehall’. They must have got lost, as they never appeared.
This catalogue of lies from officers on the ground only served to disorientate and demoralise those within the cordon. It did not prevent serious injury to persons involved, not did it protect buildings from damage.
The grand chamber acknowledged that this case was a clash of principle. It stands to reason then, that it would make sense to view the policy holistically, rather than in the narrow confines of the circumstances presented to them. The fact that disorder was occurring in other parts of the city was cited as justification for the cordon, along with the erroneous assertion that it was unavoidable and the least intrusive way of dealing with the protest. Whilst it is true that the European Court of Human Rights cannot create ‘add-on’s ‘ to the convention and must interpret the wording, the individual articles must be viewed in context of the document in its entirety.
The presence of disorder across the city does not justify the subversion of the human rights of individuals. The fact the containment was necessary to manage multiple incidents should act as an impetus to invest more in policing and, in particular, training officers how to successful facilitate a protest without systematic abuses of protestor’s human rights.
The purpose of Article 5 is to protect individuals from arbitrary interference from the state with their right to liberty. The exhaustive list of exemptions to this all relate to the detainment of individuals for the purpose of arrest or upon conviction by a competent court and as such, all relate to detention within a purpose built facility.
The motorist stranded on the m4 due to the closure of the motorway can, in principle, get out of their car, providing it is in a safe place to leave it, and remove themselves from the containment. The commuter stuck on the platform at Charing Cross tube station waiting for a severely delayed northern line train may leave the station of their own volition and seek alternative transport.
An individual caught within a police cordon at a protest may not leave until the police allow them to. Often, this departure from the containment comes with stipulations like giving a name and address and allowing a photograph of their face to be taken. This is, in its very purest form, arbitrary interference from the state with an individual’s right to liberty.
At the student protest in December 2010 a protestor sprayed the word ‘revolution’ on the side of the Supreme Court. It would appear that this is the case, but rather than the desired revolution, the establishment seems to be revolutionising the law on protesting by assiduously curtailing the rights of protestors at an unprecedented rate. The legalisation of brutal police tactics, the imposition of archaic and naïve prosecuting standards and the Home Secretary’s decree that water cannon and baton rounds would be permissible in a public order situation all have an immeasurably detrimental effect on the right to protest in this country. The judgement in Austin V U.K. solidifies the judicature’s complicity in this anti-protest revolution.
Pete Doherty sings, ‘ It’s not right for young lovers to be coughing up blood’. According the European Court of Human Rights, it’s perfectly permissible providing it occurs within a cordon implemented by the police in a public order situation. Evidently, it’s better for young protestors to suffer injuries at the hands of the police than to see the windows of high street chains smashed.
