Kettling 'not breach of human rights'

Police use of “kettling” tactics to contain crowds during violent demonstrations in London in 2001 did not breach human rights, European judges ruled today.

The first ruling by the European Court of Human Rights about the legality of corralling people to maintain public order said: “The case concerned a complaint by a demonstrator and some passers-by that they were not allowed to exit a police cordon for almost seven hours during a protest against globalisation.

“The court notably found that the people within the cordon had not been deprived of their liberty within the meaning of the (Human Rights) Convention.”

In the first major use of the controversial tactic, police blocked off an area of Oxford Circus on May Day 2001 and held everyone inside it.

Among them were Lois Austin, who was part of the demonstration, and three passers-by – George Black, who was trying to walk to a local book shop, Bronwyn Lowenthal and Peter O’Shea, who were both taking lunch breaks from work.

The four turned to Strasbourg after losing their damages claims in UK courts.

Today’s majority 14-3 ruling from Strasbourg backs a House of Lords verdict in 2009 that “kettling” as a crowd control measure was “necessary, proportionate and lawful”.

The human rights judges said the use of “kettling” on that occasion did not breach Article 5 of the Human Rights Convention, which safeguards the “right to liberty and security”.

The four found themselves detained in a crowd of more than 1,500 people at Oxford Circus. Even those not involved in the protest were refused permission to leave the cordoned area, and none had access to food, water or toilets.

They were held from about 2pm, when the “kettling” began, until it ended in mid-evening.

Today’s ruling said that such containment within a police cordon during a violent demonstration did not amount to deprivation of liberty.

“In particular, the police had imposed their cordon to isolate and contain a large crowd in dangerous and volatile conditions. This had been the least intrusive and most effective means to protect the public from violence.

“Although the police tried to start dispersing the crowd throughout the afternoon, they had been unable to do so as the danger had persisted.”

The judges said police had been aware that on May 1, 2001 activists from environmentalist, anarchist and left-wing protest groups intended to stage various protests based on the locations from the Monopoly board game.

The organiser did not contact police or seek authorisation for demonstrating and by 2pm a crowd of more than 1,500 filled Oxford Circus with more steadily joining. At about 2pm police decided to cordon off Oxford Circus, but regular efforts at “controlled dispersal” of the crowd became impossible because some people inside and outside the cordon broke up paving slabs and threw debris at police. Dispersal was finally completed at 9.30pm.

Today’s ruling said police had expected a “hard core” of between 500 and 1,000 violent demonstrators to gather at Oxford Circus at about 4pm. Given that, two hours earlier, more than 1,500 people were already there, “the police decided to impose an absolute cordon as the only way to prevent violence and the risk of injured people and damaged property”.

The judgment pointed out that the Human Rights Convention Article upholding liberty and security did not have to be interpreted in a way to make it impossible for the police to maintain order and defend the public.

The Convention, which also imposes a duty to protect individuals from violence and physical injury, had to be “interpreted harmoniously, as a whole”.

The context of restrictions was also important.

“Members of the public are often required to endure temporary restrictions on freedom of movement in certain contexts, such as travel by public transport or on the motorway, or attendance at a football match.

“The court did not consider that such commonly occurring restrictions could properly be described as ’deprivations of liberty’ within the meaning of Article 5, so long as they were rendered unavoidable as a result of circumstances beyond the control of the authorities, were necessary to avert a real risk of serious injury or damage, and were kept to the minimum required for that purpose.”

The judges said there was space within the cordon on that day for people to walk about and there had been no crushing, but acknowledged: “However, the conditions had been uncomfortable, with no shelter, food, water or toilet facilities.”

The judges said it was “striking” that about five minutes after the “absolute cordon” had been imposed, there were police plans to start a controlled dispersal.

The situation had been kept under “permanent close review” as the day went on. As the same dangerous conditions continued to exist, those within the cordon could not be said to have been deprived of liberty.

The judgment concluded: “Notwithstanding the above finding, the court emphasised the fundamental importance of freedom of expression and assembly in all democratic societies and underlined that national authorities should not use measures of crowd control to stifle or discourage protest but rather only when necessary to prevent serious injury or damage.”