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Kettling protesters is lawful, appeal court rules
Metropolitan police win appeal against high court ruling criticising violent tactics at the G20 protest in 2009
Owen Bowcott
Police tactics of kettling protesters, used extensively during the G20 protests in London three years ago, have been upheld as lawful.
The appeal court overturned a previous ruling by the high court on the controversial technique deployed to contain demonstrators during the climate camp sit-in.
Lord Neuberger, the Master of the Rolls, sitting in the court of appeal with Lord Justice Hughes and Lord Justice Sullivan, declared that the lower court’s finding was flawed and allowed the appeal by the Metropolitan police commissioner.
The ruling was immediately criticised by protesters and their lawyers, who said they would challenge the legal setback in the supreme court.
Last year high court judges decided that officers acted unlawfully in two respects during the protests and criticised them for using force.
The case concerned the G20 protests in London on 1 April 2009, during which Ian Tomlinson, a bystander, died after being struck by an officer.
Police in charge of the protest ordered the climate camp on Bishopsgate in the City of London to be kettled and then cleared, but officers were left to decide how much force they should use.
Video shot on the day showed demonstrators, who numbered around 4,000, trying to avoid being beaten by raising their hands in the air and chanting “This is not a riot” at police wearing helmets and riot gear.
In their decision, the appeal court judges said: “There was no valid basis for concluding that [Chief Superintendent] Johnson’s decision to contain the climate camp at 19.00 on 1 April 2009 was unlawful, as his 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.”
The behaviour of the protesters may not have been excessively violent, the judges implied. But the key factor was whether the decision by the police officer in charge “was justifiable on the ground that containment was the least drastic way of preventing what the police officer responsible for the decision reasonably apprehended would otherwise be imminent and serious breaches of the peace.”
The judges added: "Containment of a crowd involves a serious intrusion into the freedom of movement of the crowd members, so it should only be adopted where it is reasonably believed that a breach of the peace is imminent and that no less intrusive crowd control operation will prevent the breach, and where containment is otherwise reasonable and proportionate.
“Almost by definition, a decision to contain will only be made, or even considered, in extreme and exceptional circumstances: the [high court] made it clear that they thought the circumstances appertaining in the City of London on 1 April 2009 were extreme and exceptional.
“But an argument as to whether, in a particular case, the circumstances were extreme or exceptional enough, or ‘truly’ extreme and exceptional, is scarcely likely to assist those deciding at the time whether to contain, or those subsequently deciding whether the containment was justified.”
John Halford, the solicitor from the law firm Bindmans who represented the protesters, said: "This judgment is very difficult to reconcile with the principle that the law protects peaceful protest and the stark facts of what the police did on 1 April 2009.
“The 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; instead there is merely the triumph of the known wrongdoer who has unexpectedly evaded censure for their actions.”
Sam Walton, from the Camp for Climate Action legal team, said: “We are obviously disappointed with this conservative ruling and will be seeking to appeal. This had been one of the very few successful cases challenging the police’s use of kettling and sent a clear signal that the tactics they used at the G20 were disproportionate.”
Josh Moos, one of the protesters who brought the judicial review case against the police, said: “This judgment won’t make people forget the footage of the police baton-charging the climate camp or what happened to Ian Tomlinson that day. The police acted violently and were out of control. It’s a shame the judges couldn’t see that.”
Another appeal against police kettling tactics is currently before the European court of human rights in Strasbourg. The case of Austin and others v the UK, which relates to demonstrators and passersby held behind a police cordon on Oxford Street, central London, in 2001, is awaiting judgment. The House of Lords previously ruled that the protester, Lois Austin, had not been deprived of her liberty.
Source: http://www.guardian.co.uk/uk/2012/jan/19/kettling-protesters-lawful-appeal-court?newsfeed=true