The police tactic of kettling people who are, at the point of captivity, not breaking any law still sits very uncomfortably alongside the fundamental tenet of freedom to protest peaceably. The majority of victims of kettling are innocent and not suspected of criminal action or intent. It is detention without conviction, charge, or arrest and caution.
Disappointing then that the police have won their appeal against a High Court ruling made last April that it was unlawful for them to kettle several thousand Climate Camp protesters in London who were not causing any trouble. The concern was that less well behaved (in fact violent and destructive) protesters at a nearby demonstration, aimed mostly at banks, would infiltrate the Climate Campers and extend the battle to their group. The key question for the police when considering taking action against a protest is whether there is imminent danger of a breach of the peace. In April the High Court said that there wasn’t and that the containment of the innocent protesters was wrong.
But the Appeal Court says the thinking of the High Court was wrong. Apparently it wasn’t for them to judge whether a breach of the peace was imminent but whether it was reasonable for the police to think that it was imminent. A subtle distinction; a semantic argument; a great game for judges and lawyers to play; but it means little to the public and misses the whole point about the unfairness of kettling innocent people.
The Appeal Court even acknowledged that kettling is lawful only if police had taken all other possible steps to prevent the imminent breach of the peace. But one step is to arrest those who are breaking the law rather than stand back and allow them to continue or to spread their criminality to a different but peaceful group. If this requires more resource then more resource must be acquired and applied.
Other legal cases on kettling are still in progress and the wigs and gowns are loving it. The innocent victims of kettling are not.