The state of kettling

The resort to ket­tling as a pre­lim­in­ary strategy of the Lon­don Met has left many of us wor­ried – not to men­tion cold, hungry, and angry for hours at a time. Those of us who have been sub­ject to the pig­pen have many stor­ies to share about being detained for hours on end without med­ic­a­tion, proper cloth­ing, food, or com­mu­nic­a­tion with out­side parties. And we are wor­ried, not just about the grow­ing pre­val­ence of this strategy as a way of for­cibly delim­it­ing the spaces of pub­lic protest, but also because of its poten­tial effects on the hearts and minds of protest­ors and other demonstrators-​in-​the-​making.

In sev­eral con­ver­sa­tions I have had with com­rades who’ve been rounded-​up on one or more occa­sions, there has been a recur­ring theme of con­cern. These indi­vidu­als artic­u­late a hes­it­a­tion about going to future actions for fear of long detain­ment in (espe­cially as Winter sets in) less than desir­able con­di­tions. Of course, one might respond to such con­cerns with a simple ‘get over it — dress warm and see you on the streets’. There is some import­ant advice to heed in such a retort. Cer­tainly we don’t want to be giv­ing the Lon­don Met any credit in scar­ing us off with their strategies of con­tain­ment. We could — and will — wait them out any day.

How­ever, as ket­tling becomes a nor­mal­ized tac­tic at large-​scale demos, many who would nor­mally be inclined to demon­strate for a few hours talk about stay­ing away for fear of being con­tained for an entire day. Cer­tainly, the poten­tial deploy­ment of ket­tling makes it dif­fi­cult for those with chil­dren or other oblig­a­tions to com­mit to being on the streets. Moreover, since the nor­mal­iz­a­tion of the tac­tic, I have seen the mere arrival of the would-​be ket­tlers strike fear in people on the streets for fear of arbit­rary deten­tion. Now, I am no pro­ponent of lib­eral demo­cracy but it strikes me that, even on its own terms, the nor­mal­iz­a­tion of this strategy has ser­i­ous con­sequences for the lib­eral con­cep­tion of pub­lic dissent.

And Lois Aus­tin agrees with me.

Aus­tin, a demon­strator kettled at Oxford Cir­cus in 2001 dur­ing a May Day march, recently chal­lenged the tac­tic (Aus­tin v Com­mis­sioner [2009] UKHL — rep­res­en­ted by Chris­tian Khan). Aus­tin argued that the use of ket­tling was a depriva­tion of her liberty and con­sti­tuted a breach of Art­icle 5 of the ECHR. The courts sided with the police in the ori­ginal case, as well as on appeal and in the House of Lords. In the House of Lords case, Lord Hope claimed “…meas­ures of crowd con­trol will fall out­side the area of [Art­icle 5], so long as they are not arbit­rary. This means that they must be resor­ted to in good faith, that they must be pro­por­tion­ate and that they are enforced for no longer than is reas­on­ably neces­sary” (12). The case has now gone to the ECtHR — along with two other cases rep­res­en­ted by Bind­mans (Lowenthal and O’Shea) and another by Liberty (Black) — and isn’t expec­ted to be heard for sev­eral years. For those eager to wait for the case hear­ings or the police to act in ‘good faith’, I must say that hold­ing one’s breath has shown to have ser­i­ously adverse health effects.

Sig­ni­fic­antly, what the Lords spent con­sid­er­able time elu­cid­at­ing in Aus­tin was the police force’s need to respond to an “unex­pec­ted” threat from protest­ors who i) did not nego­ti­ate their plans with the police, and ii) broad­cas­ted the like­li­hood of ser­i­ous prop­erty dam­age. Indeed, the legit­im­acy of ket­tling in this instance res­ted on the under­stand­ing of it as a spon­tan­eous reac­tion, rather than an insti­tu­tion­al­ized strategy for poli­cing dis­sent. How­ever, as we see the pro­lif­er­a­tion of the strategy as nor­mal­ized tac­tic, begin­ning in some cases before demon­stra­tions even begin (see reports from Birk­beck stu­dents on the morn­ing of 24 Novem­ber 2010), the Lords’ reas­on­ing (unsur­pris­ingly) falls short.

Although one might hope that the adverse effects of ket­tling as a nor­mal­ized tac­tic would catch the atten­tion of some Lord almighty (and it may well in the pending Judi­cial Review invest­ig­at­ing the pro­por­tion­al­ity of the police tac­tics), the innu­mer­able aven­ues for clem­ency avail­able to the police do not inspire hope. In addi­tion to the judges’ jus­ti­fic­a­tion of the tac­tic based on the imme­di­acy of the situ­ation, they also legit­im­ized it on the grounds that Aus­tin con­tin­ued to have access to a mega­phone (and there­fore her right to freely express her opin­ions), that there was a poten­tial threat to pub­lic safety which only the police could know and mon­itor at the time, and that it was reas­on­able, given the actions of some, to detain all. As David Meade argues,

What we see in Aus­tin is effect­ively col­lect­ive guilt by asso­ci­ation — and the lar­ger the poten­tially guilty group (that is the lar­ger the num­bers of those threat­en­ing or becom­ing viol­ent), the more defens­ible it is for the police to exer­cise indis­crim­in­ate con­trol. They do not need to make spe­cific alleg­a­tions of the like­li­hood of trouble against any one per­son provided they can identify a cohort they can­not isol­ate and deal with sep­ar­ately. (Mead [2009] EHRLR: 9)

Not that any of this is new or par­tic­u­larly shock­ing for most of us. What is sig­ni­fic­ant how­ever, is the pre­val­ence of “guilt-​by-​association” that cir­cu­lates in this reas­on­ing, and its res­on­ance with that of the most recent com­ments made by UK Police Min­is­ter Nick Her­bert. In an inter­view with the Guardian’s Andrew Spar­row, Her­bert warned poten­tial demon­strat­ors of the per­ils of tak­ing to the streets for the National Day of Action on 9 Decem­ber 2010. Her­bert claims,

any­body join­ing one of these demon­stra­tions must take care…if you know, hav­ing seen the scenes on the pre­vi­ous week, that there is a group of people who are bent on viol­ence, on caus­ing crim­inal dam­age, on intim­id­a­tion, on break­ing the law, any of us would think twice, wouldn’t we, about whether we wish to be asso­ci­ated with those people” (emphasis mine, Fri­day 3 Decem­ber 2010).

Herbert’s opaque com­ments here are ana­log­ous to the amorph­ous powers of the police them­selves – both are driven by vague crypti­cisms that can be put to use as the wielder (or the wielder’s Staff Ser­geant) sees fit. As Wal­ter Ben­jamin aptly put it in 1921, “the viol­ence of the police is as amorph­ous as its phantom mani­fest­a­tion (nowhere grasp­able, every­where in evid­ence)”. Given these com­ments and the judges reas­on­ing in the Aus­tin case, it is likely that “guilt-​by-​association” will legit­im­ize the use of ket­tling at upcom­ing stu­dent demon­stra­tions merely as a res­ult of the “viol­ence” at pre­vi­ous demos.

The impulse to seek legal redress against ket­tling is tempt­ing – indeed, the hopes of find­ing a thread which would unfurl the tightly woven powers of the police in these instances is enti­cing. But the fact of the mat­ter is firstly, that cases, reviews, and reports (such as the HMIC Denis O’Connor’s report “Adapt­ing to Protest”) come after the fact. They have no way of ret­ro­act­ively help­ing us on the streets when we are deal­ing with police viol­ence. Secondly, and more found­a­tion­ally, if such a thread was found, I ima­gine it would unravel to reveal count­less more sweat­ers, all hand-​stitched with lov­ing care by the prom­ises of lib­eral demo­cracy. These prom­ises, designed to self-​legitimize them­selves, pro­duce end­less jus­ti­fic­a­tions for the neces­sary delim­it­a­tions of free­dom in the name of state secur­ity. Here I do not only mean the con­tem­por­ary exper­i­ence of gov­ernance through secur­it­iz­a­tion, but also the very sta­bil­ity of the state. As we con­tinue to invest our polit­ical hopes in these state-​sanctioned approaches, we remain depend­ent on and inves­ted in these prom­ises of liberal-​democracy that will con­tinue to allow the police to util­ize their powers largely how they see fit.

Ket­tling is a ter­rible tac­tic both for those caught between the police lines, and for those who fear such a fate. But per­haps rather than attempt­ing to frus­trate the strategy through legal means, our plan of action should be to show its inca­pa­city to work on the streets. We saw a minor glimpse of this on Wed­nes­day 24 Novem­ber 2010 when upon a police attempt to kettle, hun­dreds of demon­strat­ors went run­ning in sporadic dir­ec­tions, indir­ectly cre­at­ing dozens of anarchic snake marches in cent­ral Lon­don. These splinter groups may have chal­lenged the aes­thetic of the single mob-​demonstrations that are so photo-​friendly, but their uncon­tain­ab­il­ity is a real threat to ket­tling. Per­haps then Herbert’s com­ments should not be a ‘warn­ing’ to those plan­ning on turn­ing up to the day of action on 9 Decem­ber, but rather an incite­ment to cre­at­ive approaches in ren­der­ing ket­tling an inef­fect­ive police tactic.

Tags: Kettling, Police Powers, Student Protests

This entry was posted on 8 December 2010 at 1:25 pm and is filed under Critical Legal Theory, Human Rights, Jurisprudence, Previously. Published under Creative Commons (CC) Attribution-NonCommercial-ShareAlike 3.0 Unported License: You are welcome to share and remix this content for non-commercial purposes. Kindly acknowledge and hyperlink the source.