Kettling is only lawful in exceptional circumstances

The recent decision of the Court of Appeal, R (on the application of) McClure & Anor v The Commissioner of Police of the Metropolis [2012] EWCA Civ 12, far from signalling the demise or tight legal control of the controversial crowd containment police policy of kettling, rather gives the senior police officer in charge of policing large urban demonstrations considerable leeway and scope to impose this draconian method to take the steam out of potentially controversial and fraught gatherings.

The Divisional Court ([2011] EWHC 957 (Admin)) had held that 'in certain respects' the crowd control carried out by the Metropolitan Police regarding the Royal Exchange and ?Climate Camp demonstrations in London on 1 April 2009, the day before the London G20 summit, did not constitute lawful police operations. Lord Neuberger of Abbotsbury MR stated the 'principal outstanding issue' to be determined by the Court of Appeal was 'whether on the facts of this case, a decision to deploy the tactic of containment (or 'kettling'), was or was not lawful when applied to one part of the day's demonstrations'.

Both of the demonstrations had 'between 4,000 and 5,000 people attending' and, while the Royal Exchange demonstration was 'disorderly to the point of serious violence', the Climate Camp 'was markedly less disorderly'. Chief Superintendent Johnson, in order to 'prevent the spread of breaches of the peace' in the Royal Exchange demonstration, had contained (i.e. kettled) it, and then subsequently adopted 'a progressive dispersal' of the demonstration.

However, he 'believed that the dispersal would give rise to the real likelihood of an imminent breach of the peace if, as he judged likely, the two crowds then mingled, particularly if some of the violent elements from the Royal Exchange demonstration made their way to the Climate Camp or were joined by people from it'. Hence he decided the Climate Camp crowd should be contained 'at the time of the dispersal of the Royal Exchange demonstration'. As part of this kettling containment strategy the southern edge of the crowd was 'push[ed] north'¦ some 25 metres'.

Policing logistics

Lord Neuberger emphasised that the Divisional Court found Mr Johnson's 'decisions were taken in good faith'. Indeed Mr Johnson's contemporaneous log read: 'If groups are allowed to mix, real danger of b[reach] of p[eace].' Furthermore, at the hearing he stated 'there was a real danger of a breach of the peace if the groups were allowed to mix', and he 'believed this would happen imminently (i.e. within a few minutes, allowing for the short distance ?between the two locations) in the absence of containment'. Containment patently being shorthand here for 'kettling'. Another operational imperative driving invocation of kettling was that it was not 'possible to identify, still less to isolate, those in the Climate Camp crowd who were violent or disorderly'. The violent chaff could not be separated from the orderly and peaceful wheat

Lord Neuberger observed that Mr Johnson highlighted that resources were insufficient. Indeed the 'bulk of his resources were tied up in the dispersal operation at the Royal Exchange', so that some of his officers were fully equipped with riot kit and protective clothing, but others were not and therefore 'it was not practicable to deploy unprotected officers in confrontation with a violent crowd'.

Legal parameters

Lord Neuberger endorsed fully the Divisional Court statement regarding the pertinent legal 'propositions' manifest in R (Laporte) v Chief Constable of Gloucestershire Constabulary [2005] UKHL 55, as extrapolated from the House of Lords' judgments, concerning recourse to preventative breach of the peace powers and ?duties in relation to potentially unruly demonstrations, namely:

'(1) for a police officer to take steps lawful at common law to prevent an apprehended breach of the peace, the apprehended breach must be imminent;

(2) imminence is not an inflexible concept but depends on the circumstances;

(3) if steps are to be justified, they must be necessary, reasonable and proportionate;

(4) depending on the circumstances, steps which include keeping two or more different groups apart may be necessary, reasonable and proportionate, if a combination of groups is reasonably apprehended to be likely to lead to an imminent breach of the peace; and

(5) again depending on the circumstances, where it is necessary in order to prevent an imminent breach of the peace, action may lawfully be taken which affects people who are not themselves going to be actively involved in the breach.'

Also, Lord Neuberger cited with approval Austin v Commissioner of Police of the Metropolis [2009] UKHL 5, stating: 'Where a breach of the peace was taking place or reasonably thought to be imminent, the police could interfere with or curtail the lawful exercise of rights of innocent third parties, but only if they had taken all other possible steps to prevent the breach or imminent breach of the peace and to protect the rights of third parties, and only where they reasonably believed that there was no other means to prevent a breach of the peace or imminent breach of the peace.' The issue was, therefore, if each action, including the kettling, 'was reasonably believed by the police to have been the only way of preventing an imminent breach of the peace'.

Hence the Court of Appeal concluded that the Divisional Court had 'applied the wrong test when assessing whether there was an imminent risk of breach of the peace in the Climate Camp', because it had erroneously decided whether the view taken by Mr Johnson fell within the broad band of rational decisions rather than following the correct test; namely, whether in the light of what he knew and perceived at the time the court was satisfied that it was reasonable to fear an imminent breach of the peace.

The Divisional Court, regrettably, 'in four crucial paragraphs' of its judgment had used the words 'we think' and 'in our judgment'. The Divisional Court had simply applied the wrong legal test. As Lord Neuberger said, the court's function 'was not, therefore, to form its own view as to imminence', rather it was to assess 'the reasonableness of Mr Johnson's apprehension'. Also, Mr Johnson's own reasons for concluding there was a risk of an imminent breach of the peace, as contained in his log book entries and his evidence in court, were not examined '“ arguably a glaring and fatal mistake.

Concerning whether Mr Johnson's view was reasonable the Court of Appeal agreed that 'his apprehension was honest' and that 'the evidence he gave was accurate', agreed that the crowd at the Climate Camp was volatile and 'that there had been throwing of coins and bottles, that some demonstrators were putting on masks, that tyres on police vehicles had been slashed, that there had been an attack on a police van and that 200 hardcore protestors had already joined the camp'. Also, given the 'tense position on the ground' with 'two very large crowds in close proximity' with several possible routes between them, the MR concluded: 'There was no justifiable basis for concluding that Mr Johnson's apprehension that such a breach was imminent was unreasonable.'

Weighing up

The Court of Appeal's decision manifests the grave difficulties our courts have in striking the correct balance between the need to uphold the residual freedom/right to protest (albeit here a massive protest involving 8-10,000 protestors in London, a huge international commercial city), and the desirability of upholding public order. The use of kettling specifically in a mainly peaceful crowd could be justified, proportionate and hence lawful if made 'in extreme and exceptional circumstances', as arguably here where this containment/kettling 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'. For reasons 'of principle and practice', such kettling should not occur 'unless it was absolutely necessary'.

The residual freedom to protest '“ now a modern right '“ is an ancient freedom, very hard won, and in a liberal western democracy one that should be resolutely defended by the courts and by parliament. Hopefully an effective legal lid has now been put on the kettle.