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Human rights judges reject "kettling" complaint

15 March 2012

Individuals caught up in a police "kettling" containment exercise during a violent demonstration have failed in a complaint of breach of liberty taken to the European Court of Human Rights.

Judges in the Grand Chamber voted 14-3 in the case of Austin and others v United Kingdom that there had been no violation of article 5 (right to liberty and security) of the European Convention.

The complainers were a demonstrator and some passers-by who were not allowed to exit a police cordon for almost seven hours during a protest against globalisation in London on 1 May 2001.

In proceedings before the UK courts it was established that the police had expected a hard core of between 500 and 1,000 violent demonstrators to gather at Oxford Circus at around 4pm that day. The police had also anticipated a real risk of serious injury, even death, and damage to property if the crowds were not effectively controlled. By 2pm over 1,500 people had already gathered, and the police had decided to impose an absolute cordon as the only way to prevent violence and the risk of injury and damage.

Within the cordon people could walk about and there had been no crushing, but conditions had been uncomfortable with no shelter, food, water or toilet facilities. The police tried continuously throughout the afternoon to start releasing people, but their attempts were repeatedly suspended because of the violent and uncooperative behaviour of a significant minority both within and outside the cordon. Full dispersal was not completed until 9.30pm.

The complainers were Lois Austin, a protester; George Black, who had intended to visit a shop but had been diverted by police action into Oxford Circus; and Bronwyn Lowenthal and Peter O'Shea who were both on their lunch break but found themselves caught within the cordon until 9.35pm and 8pm respectively.

Contexts

In its judgment the court said the Convention was a “living instrument”, which had to be interpreted in the light of present day conditions. Even by 2001, advances in communications technology had made it possible to mobilise protesters rapidly and covertly on a hitherto unknown scale. Article 5 did not have to be construed in such a way as to make it impracticable for the police to fulfil their duties of maintaining order and protecting the public.

The Convention had also to be "read as a whole, and interpreted in such a way as to promote internal consistency and harmony between its various provisions". It had to be taken into account that variious articles placed a duty on the police to protect individuals from violence and physical injury. And the context in which the action had been taken was also relevant: members of the public were often required to endure temporary restrictions on freedom of movement in certain contexts, which could not properly be described as “deprivations of liberty” within the meaning of article 5(1), 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.

Accepting, as it normally would, the facts found by the domestic courts, the court that given the circumstances at the time, an absolute cordon had been the least intrusive and most effective means available to the police to protect the public, both within and outside the cordon, from violence.

The applicants had not contended that, when it was first imposed, those within the cordon had been immediately deprived of their liberty, and the court was unable to identify a moment when the containment could be considered to have become such. It was striking that some five minutes after an absolute cordon had been imposed, the police had been planning to start a controlled dispersal. Thereafter they had made fairly frequent attempts to start dispersing people and had kept the situation under permanent close review. As dangerous conditions had continued to exist, the court found that the people within the cordon had not been deprived of their liberty within article 5(1).

The court however emphasised the fundamental importance of freedom of expression and assembly in all democratic societies and 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.

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