The UK Court of Appeal has ruled in the case of Moos and McClure (R v Commissioner of Police) that the kettling of protestors and demonstrators by police at the 2009 G20 summit in London was lawful. This ruling has reversed a previous decision of the Divisional Court where kettling was found to be unlawful. The Divisional Court had considered that there was no imminent breach of the peace to justify the kettling decision, and accordingly held that police officers used unlawful force.
The Divisonal Court decision was successfully appealed by the Metropolitan Police Commissioner. The Court of Appeal found that the Commissioner's "apprehension that a breach of the peace was imminent was a reasonable view for him to have formed in the light of the information available to him at the time." A key factor in the Court of Appeal overturning the Divisional Court's decision was the fact that the lower court had substituted its own view of whether a breach of the peace was imminent, instead of assessing whether the police had been reasonable in their view.
Comments by demonstrator groups to the Guardian and the Independent newspapers indicate it is likely that they will attempt to appeal the decision to the Supreme Court (despite leave to appeal being refused by the Court of Appeal), on the grounds that the case raises issues of general public importance. John Halford of Bindmans LLP, the solicitor representing the demonstrators said "[t]he Supreme court will be asked to examine the case. The police reaction to what the Court of Appeal has said is also very disturbing. There is no hint of contrition for the injuries protesters suffered at the hands of many officers involved."
However, the chairman of the Common Home Affairs Select Committee welcomed the Court of Appeal's decision. Labour MP Keith Vaz said he wanted "clear parameters to be set so that those exercising their right to protest and police officers are aware of the situations in which these methods will be used."
Bulletin readers may also recall the appeal that was brought before the European Court of Human Rights, in the case of Austin & others v UK, which concerns the lawfulness of kettling. A judgment is still currently pending in that case.