For the first time, the European Court of Human Rights is considering the lawfulness of "kettling"; the containment of people in a confined space for a period of time. The case of Austin & Ors v. the United Kingdom was heard by all 17 judges of the full Grand Chamber of the Court on 14th September 2011.
Click here to view a press release by the Court and a webcast of the hearing.
Click here to view a press release by UK human rights organisation, Liberty.
Readers of the Bulletin may recall that in the case of Moos & McClure earlier in 2011, the English High Court found the use of kettling at Climate Camp protests to be unlawful, because at the time the decision to contain the protest was taken "there was no sufficient apprehended imminent breach of the peace...to justify containment". However the Court did not find the tactic to be unlawful in and of itself.
More recently in Castle & Ors, the English High Court has found the use of kettling in tuition fee protests lawful, notwithstanding that it entailed the containment of the two Claimant school-children, aged 16 and 14.
Adam and his sister Rosie participated in demonstrations against the proposed rise in university tuition fees in central London in November 2010. They were not wearing school uniforms. They became separated from their friend and at round 2 PM they decided to leave but were unable to, as they were blocked by a police cordon. They were now caught up in "kettling" of the protest crowds, with the police dispersing crowds in staggered stages. Rosie was allowed to leave at 7.15 PM and Adam at 8.30 PM.
The Court accepted the Claimants' submission that the Chief Police Officer was under a statutory obligation to ensure that decisions affecting children have regard to the need to safeguard them and promote their welfare. They found that he had regard to that requirement by receiving and sharing intelligence on school-children's involvement in the demonstration.
In assessing the lawfulness of the "kettling" of the Claimants, the Court reasoned that the continued anticipation of an imminent breach of the peace justified the police's actions.
They noted that the police made repeated efforts to identify school-children, particularly those in uniform, and immediately release them. They also accepted the argument that many protesters were armed, which justified the police searching protesters. This in turn prolonged the period of containment. The Court concluded that whilst the resulting delay to the dispersal of the crowds, which included the young and vulnerable, was "regrettable", it was justified by the events.