Kettling: European Court of Human Rights Upholds the Law Enforcement Practice

The controversial law enforcement practice of kettling - - - confining and cordoning persons, usually during a protest or assembly, often for extended periods of time - - - has been upheld by the European Court of Human Rights (ECHR) in its opinion in Austin & Others v. United Kingdom. 

Kettling has become increasingly popular as US police practice, including in Occupy protests.  There is a lawsuit against the NYPD for the kettling and mass arrest at the Brooklyn Bridge last October.

The ECHR case arose from a 2001 protest in London in which the applicants were held within a police cordon for up to seven hours during the course of the demonstration, although some had no affiliation with the protest.  In the UK proceedings, the judges rejected the applicants' claims of false imprisonment and denial of the right to liberty (interestingly the applicants had dropped their original free speech and free assembly claims), reasoning in large part that law enforcement had to perform their duties of crowd control.   

In the ECHR the applicants contended that they were deprived of their liberty in breach of Article 5 § 1 of the Convention,  provides that "Everyone has the right to liberty and security of person" and that no one "shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

• (a)  the lawful detention of a person after conviction by a competent court;
• (b)  the lawful arrest or detention of a person for non- compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
• (c)  the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
• (d)  the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
• (e)  the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
• (f)  the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.”

The U.K. government argued that there was no denial of liberty, but if there was, it was within the exceptions of (b) or (c).

The Court held that "the use of containment and crowd control techniques could, in particular circumstances, give rise to an unjustified deprivation of liberty in breach of Article 5 § 1. In each case, Article 5 § 1 must be interpreted in a manner which takes into account the specific context in which the techniques are deployed, as well as the responsibilities of the police to fulfil their duties of maintaining order and protecting the public, as they are required to do under both national and Convention law." (¶ 60). 

However, the Court concluded that the facts, as found in the U.K. trial, did not rise to level of a deprivation of liberty:

the Court is unable to identify a moment when the measure changed from what was, at most, a restriction on freedom of movement, to a deprivation of liberty. It is striking that, some five minutes after the absolute cordon was imposed, the police were planning to commence a controlled release towards the north. Thirty minutes later, a second attempt by the police to begin release was begun but suspended, because of the violent behaviour of those within and outside the cordon. Between about 3 p.m. and 6 p.m. the police kept the situation under review, but the arrival of a new group of protesters and the dangerous conditions within the crowds led them to consider that it would not be safe to attempt to release those within the cordon. Controlled release was recommenced at 5.55 p.m., but stopped at 6.15 p.m.; resumed at 7 p.m. and suspended at 7.20 p.m.; begun again at 7.30 p.m., again abandoned; then carried out continuously, by groups of ten, until the entire crowd had been released at 9.45 p.m.  . . .  In these circumstances, where the police kept the situation constantly under close review, but where substantially the same dangerous conditions which necessitated the imposition of the cordon at 2 p.m. continued to exist throughout the afternoon and early evening, the Court does not consider that those within the cordon can be said to have been deprived of their liberty within the meaning of Article 5 § 1. Since there was no deprivation of liberty, it is unnecessary for the Court to examine whether the measure in question was justified in accordance with subparagraphs (b) or (c) of Article 5 § 1.

 (¶67). 

Three judges dissented, contending that "the aim or intention of a measure cannot be taken into account in assessing whether there has been a deprivation of liberty," but are only relevant in assessing whether the deprivation of liberty was justified. 

Indeed, this does seem as if it is the better view, although the outcome might be the same.  A deprivation of liberty for seven hours does not become less a deprivation because of the rationales for the police practices, although those practices might be justifiable.

Journalist Louise Christian of The Guardian has commentary here.

RR
[image: Kettling at the G20 protests in London, 2009, via]