European court condones police kettling

ELEVEN YEARS after the ‘kettling’ (containment) of an anti-capitalist protest in central London, the European Court of Human Rights delivered its judgment on the police tactic.

Upholding the Metropolitan police’s assault on democratic rights, the European Court ruled that the police operation on May Day 2011 was lawful. The "imposition of an absolute cordon was the least intrusive and most effective" tactic available to officers, the Court ruled.

The case was brought by Socialist Party member, Lois Austin. She and 3,000 others were kettled in Oxford Circus, on 1 May 2001, for nearly seven hours. They had no access to food or water or toilet facilities. Lois was prevented from collecting her baby daughter from a creche.

Along with three bystanders who were forced into the kettle, Lois fought a long legal battle to obtain a finding that their containment was unlawful. The case went through the entire English court system before reaching the European Court. Lois commented: "This has been a long, hard struggle for freedom of speech. The increased use of kettling has had disastrous consequences for the right to peaceful protest and the safety of protesters".

Some activists questioned the decision to take a case against the Met. While socialists recognise that the law courts, along with the police, prison system and other arms of the state, are vital tools for maintaining the rule of the capitalist class, it is also important to sometimes initiate legal cases to defend the interests of protesters and the working class. By doggedly pursuing the May Day case, Lois and her committed legal team (Louise Christian and Kat Craig at Christian Khan Solicitors and Heather Williams QC and Phillippa Kauffman QC at Doughty Street Chambers) ensured that police’s new repressive kettling tactic was contested and brought to wider attention.

In March 2005 the high court ruled against Lois’s claim against the Met for false imprisonment and breach of the right to liberty. The ruling was upheld by the Appeal Court in October 2007. The Law Lords also ruled against Lois in January 2009, although they stipulated that police must use the tactic "proportionally".

Yet kettling was used extensively at the G20 protests in London, in 2009. Ian Tomlinson, a newspaper vendor, was unlawfully killed while trying to find his way through police cordons. In late 2010, thousands of students, including school students, were kettled for hours in Westminster during protests against university tuition fee rises.

Lois’s final legal option was an appeal to the European Court of Human Rights. She contested that she and 3,000 protesters were deprived of their right to liberty under article five of the European convention on human rights. Disappointingly, but not surprisingly given the inbuilt class bias of capitalist courts, on 15 March the majority of the seventeen judges at European Court Grand Chamber upheld the January 2009 House of Lords judgement that there was no deprivation of liberty.

Since May Day 2001, kettling has been used as a routine ‘crowd control’ measure by police during many large scale protests. The Met will welcome the European Court finding, as they consider kettling an invaluable tool for public order policing.

If the European Court had ruled that the 2001 May Day detention was a deprivation of liberty, which could not be justified under Article 5.1 of the European convention, the police tactic would have become unlawful and would have triggered a review of public order policing. But the majority of the judges defended the containment on the vague basis that situations "commonly occur in modern society where the public may be called on to endure restriction on freedom of movement or liberty in the interests of the common good".

Is it the ‘common good’ to deny protesters the right to protest? To detain thousands of protesters and bystanders, including school children and the disabled, for many hours in the cold and rain and without access to food, drink or toilets?

The European Court’s ruling that such restrictions are acceptable "so long as they are rendered unavoidable as a result of circumstances beyond the control of the authorities and are necessary to avert a real risk of serious injury or damage and are kept to the minimum required for that purpose", is no assurance to protesters. It imposes no real requirements on the police when they decide to corral protesters.

The court majority felt compelled to warn the police not to overstep their powers. "It must be underlined that measures of crowd control should not be used by the national authorities directly or indirectly to stifle or discourage protest, given the fundamental importance of freedom of expression and assembly in all democratic societies".

But the Met are determined to hold onto kettling and to increase their repressive powers. Chris Allison, the chief superintendent in charge of forcibly containing Lois and thousands of others in 2001, is now assistant commissioner at the Met and is in charge of policing the London Olympics. The Guardian’s Paul Lewis commented (14 March) that Allison was "recently quoted as saying that his officers were seeking intelligence about planned protests around the Games, and is unlikely to want any reduction in public order powers in the runup to the event".

The capitalist state will want to ensure that the police have available a wide range of repressive measures not just for the Games, but also for use against protests and strikes that will inevitably erupt over continuing savage government austerity. The police chiefs may hope that just the threat of being kettled will discourage people from taking part in demonstrations.

In the same week as the European Court judgement, senior British police officers said they are increasing the Met’s capacity for using baton rounds (‘plastic bullets’) and may deploy water cannons and CS gas during "future outbreaks of disorder". Northern Ireland has shown that use of these weapons will maim and kill. Seventeen people, including seven children, were killed by the British Army and the RUC police force’s use of plastic bullets, an allegedly ‘non-lethal projectile’, since they were introduced in the North in the early 1970s.

Importantly, three out of the seventeen European Court judges dissented with the majority view. The three judges, from Belgium, Luxembourg and Poland, were led by Françoise Tulkens, who is the President of the Grand Chamber of the European Court of Human Rights. Their impressive ‘dissenting opinion’ opened by stating, "We do not share the view of the majority that there was no deprivation of liberty in the present case". The majority view, justifying deprivation of liberty arising from public order considerations, is a dangerous precedent, the three dissenting judges warned, and sends "a bad message to police authorities".

While Lois’s legal challenge has gone as far as it can, the kettling issue and the campaign for democratic rights will not go away. As Lois commented after the European Court judgement: "The campaign for the right to protest will continue and will go hand in hand with the fight against cuts, wars and erosion of civil liberties and democratic rights. Today many more people have the same views as the anti-capitalist protesters had in 2001, as we have seen with the international Occupy movement. In Britain we face years of austerity – the campaign will go on".

Other cases related to police containment tactics, which were put on hold pending the European Court ruling, will now go ahead. The Supreme Court will consider whether the containment of the climate change camp sit-in at the G20 protest was lawful. On 26 March, the trial began of Alfie Meadows and other defendants, who took part in a march against fees and cuts in London on 9 December 2010. Alfie suffered serious head injuries from police baton attacks but it is he who stands trial on violent disorder charges.

Socialists will continue to campaign for the right to protest and in defence of civil and democratic rights, to stop the victimisation of protesters by the police and in the courts, and for the scraping of all repressive powers and anti-trade union laws. The long passage of the May Day case through the English courts underlines the need for the right to trial by jury. The police need to come under the control of, and be accountable to, local communities, and the rank and file police must have trade union rights.

The right to protest and other democratic rights were won over many decades by the mass struggles of the organised working class. Defending these essential rights and stopping the state acquiring and using new repressive powers, will ultimately depend on successfully mobilising the same collective methods of mass struggle and by building a strong socialist alternative.

Niall Mulholland