Kettling for intelligence ruled unlawful by High Court

The High Court has issued an important ruling relating to Police intelligence gathering during containment situations.

During a TUC demonstration in London on 30th November 2011, a kettle was imposed on UK Uncut protesters in order to stop an imminent breach of the peace. Protesters were then told that they could leave the kettle, but only after being searched, giving their details (name, address, date of birth), and allowing themselves to be photographed. This will sound all too familiar to those who regularly attend protests and find themselves in containment situations; activists and groups have long accused the police of using containment tactics simply as a convenient way to gather intelligence on protesters when they have no power to do so otherwise.

One individual caught up in the incident was Susannah Mengesha, a law graduate who was volunteering as a legal observer. She was told by police that pursuant to s.50 Police Reform Act 2002 she would have to allow herself to be photographed and hand over her details if she wanted to be released from the kettle. Groups such as Netpol have previously warned of the abuse of s.50, and even pointed out that HMIC’s own report acknowledged that its indiscriminate use could be unlawful.

Ms Mengesha put this to the test, and sought a judicial review of the Met’s actions in the Administrative Court. Today’s ruling confirms that the police had indeed acted unlawfully. Whilst the act of containment itself was lawful and not in dispute – and the searching of protesters as they left the kettle was also lawful – the Met argued that protesters also being subjected to identification and filming in exchange for release from the containment was “part and parcel” of the containment procedure. Lord Justice Moses rejected this, stating:

“The Commissioner’s argument appeared to have been based on a significant misapprehension as to the lawful scope of his powers….the police are not entitled to arrogate to themselves such action as they regard reasonable to prevent a breach of the peace.”

He pointed out that s.64A Police and Criminal Evidence Act 1984 (which provides powers to take photographs of suspects in public) could not be applied as the individuals within the kettle had not been arrested. He also asserted that containment, whilst lawful, is only permissible in restricted circumstances – namely when it is proportionate and necessary to prevent a breach of the peace:

“It is the limited and confined purpose for which containment may be imposed which reveals that containment for the purpose of obtaining identification is unlawful. It was not lawful for the police to maintain the containment for the purposes of obtaining identification, whether by questioning or by filming. It follows that it was not lawful to require identification to be given and submission to filming as the price for release.”

Identification could neither be justified under s.60 PACE 1984, which only confers a right to search, and the Met’s argument that protesters somehow voluntarily gave their information was also rejected.

More interestingly, Moses LJ discussed the relevance of Art. 8 ECHR (the oft-maligned right to respect for private and family life) to police filming and whether indiscriminate identification in these circumstances would engage the right.

“In this case individuals not under arrest were required to be filmed individually in close-up, from front and back, and to give their names and addresses and dates of birth, to be linked with the future police use. There can be no doubt that in those circumstances Article 8 was engaged and it was incumbent upon the Commissioner to justify the collection and retention of the film and personal details.”

The Judge pointed out that there is currently no published policy on retention of data gathered in these circumstances and (even if leaving aside the overriding fact that there was no statutory power to obtain that data in the first place) there was no way it could be justified in this case.

The police’s widespread misuse of s.50 in containment situations was undoubtedly used in order to harvest as much information about as many protesters as possible, so that activists could be added to intelligence databases and their activities closely mapped and monitored. It is plain to see the chilling effect that this practice has on those who wish to exercise their democratic right to protest, particularly when unnecessary pre-emptive arrests in the run-up to high profile events seem to be the order of the day.

This decision should be seen as a real victory against excessive and draconian public order policing.

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4 comments

  1. Good to know someone fought and won. Well done Susannah!

  2. anon · · Reply

    I’d like to know how I get my details removed too without having to go to the high court. I was unlawfully filmed and had to provide my details to be released from a kettle back in 2009.

    1. Hi there, get in touch with Netpol, I believe they are running a campaign to help people have their details removed. Good luck!

  3. anon · · Reply

    Thanks, I’ve dropped them an email and hopefully they will be able to help 🙂

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