Tuesday, 16 July 2013

Kettling and Police Powers

Mengesha v Metropolitan Police Commissioner [2013] EWHC 1695 (Admin) - Moses LJ and Wyn Williams J - is a short judgment on an important issue.  The court had to consider whether the Police can lawfully require individuals 'kettled' (or 'contained') to give their details or be videoed before they are allowed to leave the 'kettle' (or 'area of containment').  A further question related to the legality of the Police retaining CDs showing the individuals for 6 years being the limitation period for civil actions in respect of false imprisonment and malicious prosecution.

On 30th November 2011, the Police authorised a 'kettle' on Panton Street, near Haymarket, London.  About 100 individuals were kettled including the claimant Mengesha who was present as a legal observer.  No one disputed that the containment was justified because serious damage and a breach of the peace had occurred and officers reasonably apprehended an imminent further breach of the peace.

At the time, there was authorisation under the Criminal Justice and Public Order Act 1994 section 60 for a constable in uniform to stop any pedestrian and search for offensive weapons or dangerous instruments.  The Police took the view that those within the containment area should be searched as part of a disciplined release from containment.  The legality of such a search was not questioned.

As people were funnelled out of the containment area, a Chief Superintendent decided to film those leaving and obtain their details.  He took the view that such action would help in any subsequent post-incident investigation to identify persons involved in criminal acts.  The claimant was held in a separate area, surrounded by police officers, and filmed. She was asked to give her name and address and date of birth. She attempted to ask what police power was relied upon authorising the police to film her and ask her details. Those questions were not answered until she had been filmed and given her details.

The court noted that Police Powers exist which can require individuals to give their details to the Police.  The Police Reform Act 2002 section 50 enables the Police to require names and addresses of a person who has been or may have been behaving in an 'anti-social' manner.  (Anti-Social Behaviour Orders or ASBO  are another controversial area).   The Police and Criminal Evidence Act 1984 section 64A allows the Police to photograph those who have been arrested.  Neither of those powers enabled the Police to take details and video before a person was allowed to leave a containment area and there was no statutory or common law power permitting such action.

Since the video had been obtained unlawfully, it could not be retained.

Videoing a member of the public engaged Article 8 of the European Convention on Human Rights when the video was  taken as the price of being required to leave a containment area.  The retention of the video was not 'in accordance with the law' and the retention was therefore a breach of Article 8.  The claimant merely sought vindication of her claim and did not seek any other form of just satisfaction.

The judgment is well worth reading in full.  At para. 12 is a succinct summary of the law relating to 'kettling'....

Although the common law has sanctioned containment it has done so in only restricted circumstances.  This is designed to avoid uncertainty and the potentially chilling effect on freedom of assembly and expression to which Lord Mance drew attention in R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55 [2007] 2 AC 105 at 141.  Containment is only permitted where a breach of the peace is taking place or is reasonably thought to be imminent.  It is a method of last resort where other possible steps to prevent a breach of the peace would be ineffective - Austin v Commissioner of Police of the Metropolis [2007] EWCA Civ 989 [2008] QB 660 at paras 20, 35 and 119(2) and it must be proportionate (R (Moos) v Commissioner of Police of the Metropolis [2012] EWCA Civ 12 at paras 39 and 95.   It is clear, therefore, that containment is not permissible for some purpose other than to prevent a breach of the peace which is taking place or reasonably thought to be imminent.

In principle, there is nothing to prevent any individual VOLUNTARILY offering the Police their details.  On the facts in this case, the court considered that the claimant had not acted voluntarily.  However, the reader may find paragraphs 14 to 16 of interest since the court discusses voluntary identification and notes an issue which may arise some future case but was not for decision in this case.

Addendum:For a further view on this case see Paul Bernals' blog -  Identity Crisis

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