Leeds Law Blog editor ROSALEE DORFMAN spoke with Leeds activist Hannah McClure, whose her case against the Met Police for ‘kettling’ has reached the highest levels of the justice system.
Bishopsgate, London. 1 April 2009. The counter-G20 Summit protesters popped up tents, unravelled the slogan, ‘Nature doesn’t do Bailouts,’ and created a festival-like atmosphere to demonstrate against climate change in face of the adjacent European Climate Exchange. A quarter of a mile away at the Bank of England, another anti-capitalist demonstration converged and confronted police, where some protesters smashed up neighbouring unoccupied properties. At 19:00 Hannah McClure, along with the rest of Climate Camp, was subject to Police Chief Superintendent Johnson’s order of ‘full containment’ – kettling – of the Climate Camp. This also resulted in a heavy-handed ‘push north’ to block alleyway entrances. Simultaneously, the Metropolitan Police dispersed the Bank of England demonstration. Using Section 14 of the Public Order Act 1986 to impose conditions on the demonstration, this directive was given to prevent the ‘serious public disorder, serious damage to property or serious disruption to the life of the community,’ that Johnson thought would ensue if the two protests merged.
McClure and Joshua Moos were among those at Climate Camp; they made judicial review claims against the police’s violent ‘push north’ and kettling of the mostly peaceful Climate Camp protest. The police’s cordoning and confining people in a small area of Bishopsgate was found by the Divisional Court to constitute an unlawful violation of the right to freedom of assembly and association under Article 5 of the European Convention of Human Rights (ECHR). Such unlawfulness arose from the fact that kettling nearly all the protesters, both violent and non-violent, was disproportionate, unnecessary and unreasonable under both the common law and ECHR. Here this judicial division between violent and peaceful demonstrators first becomes apparent, which is upheld in the Court of Appeal’s ruling in favour of the police: R (Moos) v The Commissioner of Police of the Metropolis  EWCA Civ 12.
The Court of Appeal decided that the Divisional Court had made an error when it applied its own test of ‘an imminent breach of the peace,’ rather than applying the correct test of if the senior police officer made a reasonable conclusion regarding the immanency of the breach of the peace. For McClure, the Court of Appeal framed their judgment as: ‘What would have been reasonable for the police to do given the situation?’ In effect this Court of Appeal decision narrows the scope of challenging the police’s actions by considering only if the police’s decisions on the ground were reasonable, which could legitimise a range of police tactics. This emphasis not only disregards the actual operation of that decision, but also views the protester with respect to their ‘reasonableness.’ The court draws an arbitrary line between the reasonable, peaceful protester screaming, ‘This is not a riot!’ to make their non-violence explicit and those unreasonable, suddenly violent people who may attempt to ‘hijack’ (the Chief Superintendent’s term) the mostly reasonable Climate Camp.
Although McClure insisted that her solicitors eliminate references to this false violent/non-violent dichotomy in her submission, it was inevitable that such division would be discussed in court as it distinguished which protest acted reasonably and within lawful restraints. McClure’s case seems to hinge on portraying the protesters in this ‘good,’ non-violent light in order to demonstrate that the kettling of the protesters in the name of preventing further disorder was unreasonable and unlawful.
The dichotomy between the good, non-violent and the bad, violent protest is fundamentally flawed, since individuals and groups can readily switch between these victim and perpetrator categories. Actions do not easily fit in this dichotomy. Merely linking arms with fellow campaigners can be interpreted as a lawful exercise of the freedom of assembly or an unlawful obstruction of a police officer in carrying out their duty. This indicates a conundrum in the human rights legal framework. When it is perceived that protesters act violently, their rights seem to evaporate, trumped by the rights to be protected from the possible threat of violence. The Court of Appeal focused narrowly on Johnson’s decision, not the actual operation of the police’s order to ‘push north’ and then violently disperse the Climate Camp protest. Thus the police conduct falls outside of the ECHR radar and the protesters’ rights were seemingly safeguarded. As the police successfully reiterated the lawfulness of their dispersal using Section 14 of the Public Order Act 1986 to impose conditions on the assembly, the protesters had their allotted time to exercise their Article 10 right to freedom of expression and their Article 11 freedom of assembly rights. Although many were arrested and dragged away, the fact that the police were carrying out a dispersal order relieves them of scrutiny under Article 5, the right to personal liberty and security. The violent/non-violent distinction applied to the deciding the lawfulness of the protest does not apply horizontally to the police’s conduct.
The case further employs this good/bad protest distinction to demonstrate the reasonableness of Johnson to fear that if the two protests would merge, this would produce ‘a large crowd which he could not control ‘running amok’ in the City.’ McClure analysed how the police are increasingly aware of the power of many different groups joining together and employ kettling as a means to prevent these mergers. Not only was this clear in the G20 protests, but also in the demonstrations of 25th March 2011, when student protests were prevented from joining the march of the striking Sparkies (electricians).
McClure further explained how her case is likely to develop since granted appeal by the Court of Appeal. If the UK Supreme Court do not hear her appeal against the lawfulness of the police’s kettling, then her solicitors may bring the case to the European Court of Human Rights (ECtHR). However, since the case of Austin v Metropolitan Police Commissioner  AC 564 was recently reviewed by the European Court of Human Rights (ECtHR), McClure’s case has less likelihood of success. The Court found that the kettling of a 2001 anti-globalisation protest did not reach the deprivation of liberty threshold under Article 5 ECHR. Those kettled included passers-by who merely happened to be in Oxford Circus at the time and found themselves locked in a tight police cordon for about seven hours. The UK and Strasbourg courts considered this a mere restriction, not an unlawful deprivation of liberty. Scorner summarises the conditions under which Austin declared kettling lawful by the UK court: a. conducted in good faith; b. proportionate; c. imminent risk of breaching the peace; and d. containment for no longer than reasonably necessary. The McClure & Moos judgment does not provide explicit guidance on the general lawfulness of the kettling tactic. Yet the recent Austincase upheld the UK Supreme Court’s justification for the restriction of liberty as coming under the situations that ‘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.’
McClure had reservations about saying that if her case succeeds, this would prevent future kettling or improve the policing of demonstrations since ‘police tactics are always changing, and if they don’t use kettling, it will be something else, perhaps worse, like pepper-spraying.’ Agreeing with Scorner, she contends that the recent student and anti-cuts demonstrations last year indicated how the police use kettling as a first, rather than last, resort. McClure & Moos illustrates how the Court of Appeal adopted a different perspective on the case than the Divisional Court by framing the case around what the police reasonably decided at the time, rather than incorporating the forceful execution of Johnson’s decision or what the protester would have reasonably or unreasonably done. Although McClure hopes to win her appeal, she fundamentally critiques the divisionary reasoning that compares the peaceful, good Climate Camp protester, whose rights should be upheld, to the fear-instigating, violent Bank of England demonstrators, constructed not as rights-bearers, but potential hijackers of the lawful Climate Camp.
 Wessen Jazrawi, ‘ Metropolitan Police succeed in G20 ‘Kettling’ appeal’ (UK Human Rights Blog, Janugary 19, 2012) http://ukhumanrightsblog.com/2012/01/19/metropolitan–police–succeed–in–g20-kettling–appeal–wessen–jazrawi/.
 Police Act 1964, s 51.
 Moos, para 24.
 See Louise Christian, ‘This judgment in favour of kettling is a missed opportunity’ (The Guardian Online, 15 March 2012), <http://www.guardian.co.uk/commentisfree/2012/mar/15/judgment-in-favour-of-kettling> , accessed 1 July 2012
 R Scorner ‘Kettling matters’ (2011) N.L.J. 161(7452), 196.